Opinion Analysis: RFRA could apply but the pro se accused failed to make the case in United States v. Sterling, Nos. 15-0510/MC & 16-0223/MC
CAAF decided the Marine Corps case of United States v. Sterling, 75 M.J. 407, Nos. 15-0510/MC & 16-0223/MC (CAAFlog case page) (link to slip op.), on Wednesday, August 10, 2016. The court holds that Sterling’s disobedience of an order could qualify for protection under the Religious Freedom Restoration Act (RFRA), however the majority finds that Sterling failed to establish that the order she violated substantially burdened her exercise of religion. Accordingly, CAAF affirms the findings and sentence.
Judge Ryan writes for the court, joined by Chief Judge Erdmann, Judge Stucky, and Senior Judge Cox. Judge Ohlson dissents.
Contrary to her pleas of not guilty, Lance Corporal (E-3) 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 elected to represent herself at trial (though she had the assistance of detailed military defense counsel). 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 asserted at trial and on appeal that the signs represented the Christian trinity and were posted as an expression of her religious belief.
The Navy-Marine Corps CCA affirmed the findings and sentence after concluding that Sterling’s conduct was not entitled to protection under RFRA. CAAF then granted review of two issues specified by the court, and the Judge Advocate General of the Navy certified two additional 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?
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?
In yesterday’s decision CAAF concludes: that the order was lawful (answering the second granted issue in the affirmative); that Sterling’s failure to follow the procedures to seek an accommodation is relevant (answering the first certified issue in the affirmative); that Sterling did not waive or forfeit her claim under RFRA (answering the second certified issue in the negative), and; that Sterling failed to establish the facts necessary to prevail on a RFRA claim (answering the first granted issue in the negative).
Judge Ryan’s lead opinion quickly rejects Sterling’s argument that the order to remove the signs was not lawful, concluding that the circumstances of the order do not rebut the presumption that it was lawful and necessary. In particular, Judge Ryan highlights the contentious nature of the relationship between Sterling and her superiors, the combative tone of the signs, the shared nature of the workspace where the signs were posted, and the fact that there is no evidence that Sterling’s superiors know that she felt the signs were religious in nature. Slip op. at 10. Judge Ohlson’s dissent gives no indication that he disagrees with the conclusion that the order was lawful.
Judge Ryan also quickly rejects the Government’s argument that the RFRA claim is barred by Sterling’s failure to thoroughly litigate the issue at trial. Slip op. at 11 n.3. Judge Ohlson’s dissent does not indicate disagreement with this conclusion either.
“To establish a prima facie RFRA defense, an accused must show by a preponderance of the evidence that the government action (1) substantially burdens (2) a religious belief (3) that the defendant sincerely holds.” Slip op. at 13. Each of these is a fact-based question, and CAAF does not have fact-finding powers. However, the majority nevertheless concludes that Sterling failed to prove the first prong of the test – a substantial burden – with Judge Ryan finding that:
Contrary to Appellant’s assertions before this Court, the trial evidence does not even begin to establish how the orders to take down the signs interfered with any precept of her religion let alone forced her to choose between a practice or principle important to her faith and disciplinary action.
Slip op at 18. The majority finds the evidence of a burden to be so lacking that it reaches this fact-based conclusion regardless of the precise legal test employed. Slip op. at 15 n.5.
Yet Judge Ryan also highlights two additional, military-specific factors:
First, Appellant never told the person who ordered her to take down the signs — which were not, like the wearing of a hijab, obviously religious to most — that they even had a religious connotation, let alone that they were important to her religion. Requiring that minimal step before concluding that an order imposes a substantial burden is certainly not onerous or unreasonable in the military context where orders are presumed to be lawful, adherence to orders is integral to the military performing its mission, and the military force is made up of diverse individuals with diverse backgrounds — with no guarantee those charged with command have any special expertise in religion. . . .
Second, and relatedly, we will not overlook the reality that DoD and Naval regulations permitted Appellant to request an accommodation for any rule or regulation that she believed substantially burdened her religion, but required that she adhere to and follow orders while awaiting a determination on the matter. Appellant is charged with knowledge of both general orders, and not only did she fail to inform her superiors about the religious significance of the signs from her perspective, she did not request an accommodation.
Slip op. at 18-19 (internal citation omitted) (emphases added). These factors – raised by the first certified issue but seemingly unnecessary to the majority’s resolution of the RFRA claim – create what appears to be a military-specific application of RFRA:
While Appellant’s failure to seek an exemption does not prevent her from invoking RFRA, the accommodation process is important for two reasons. First, the established and expeditious option to request an accommodation illustrates the importance that the military places both on respecting the religious beliefs of its members and avoiding substantial burdens on religion where possible. Second, by potentially delaying an accommodation for only a short period of time, the accommodation process interposes a de minimis ministerial act, reducing any substantial burden otherwise threatened by an order or regulation of general applicability, while permitting the military mission to continue in the interim. This consideration is crucial in the military context, as the very lifeblood of the military is the chain of command.
Slip op. at 20.
Judge Ohlson’s dissent focuses on the CCA’s application of an improper legal test, concluding that it “deprived LCpl Sterling of a properly conducted review of her case under Article 66(c).” Diss. op. at 2. Judge Ohlson does not conclude that Sterling is entitled to a RFRA defense; rather, he concedes that had the CCA applied the correct standard Sterling still “may not have prevailed on the merits.” Diss. op. at 2. However, he finds that:
[I]nstead of remanding this case so that it can be properly adjudicated by the court below, the majority instead has chosen to impose a stringent, judicially made legal standard in this and future religious liberty cases that is not supported by the provisions of RFRA.
Diss. op. at 3.
Judge Ohlson asserts that there are four flaws in Judge Ryan’s analysis, the middle two of which involve the seemingly military-specific application created in the majority opinion:
First, the majority creates a requirement that the religious conduct must be “important” to the servicemember’s faith in order to merit protection under RFRA. . . .
Second, the majority’s approach creates a novel notice requirement. . . .
Third, the majority mistakenly follows the Government’s lead and considers LCpl Sterling’s failure to avail herself of the Navy’s accommodation framework. . . .
Fourth, and finally, the majority takes the position that the Supreme Court’s historical understanding of the term “substantial burden”—specifically, in the First Amendment context—makes clear that a claimed burden must be based on an affirmative violation of one’s religion in order to qualify as “substantial.”
Diss. op. at 11-13.
Judge Ohlson would remand the case to the CCA to reconsider the factual basis for the RFRA claim, perhaps even authorizing a post-trial factfinding hearing under United States v. DuBay, 37 C.M.R. 411 (C.M.A. 1967). Diss. op. at 10. This is in stark contrast to the majority’s conclusion that “the trial evidence does not even begin to establish” a violation of RFRA. Slip op. at 18. It also would offer Sterling a second chance to meet her burden to establish facts constituting a RFRA violation.
Yet Judge Ohlson concludes his dissenting opinion with the declaration that “the majority opinion ventures beyond that which is necessary to decide the issue before us.” Diss. op. at 14. That certainly seems right, as the majority’s consideration of the religious accommodation process (not otherwise implicated in this case) as crucial in the military context creates a military-specific application of RFRA that is unnecessary considering Sterling’s failure to establish the necessary predicate facts.
Accordingly, a future case involving an accused who makes the necessary showings of government action that (1) substantially burdens (2) a religious belief (3) that the accused sincerely holds, yet who did not first request an accommodation and is therefore denied a RFRA defense, may lead to further appellate scrutiny.
• 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
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis