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:

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?

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.

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
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

16 Responses to “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”

  1. Don Rehkopf says:

    While probably not necessary in the context of Judge Ryan’s approach to the case for the majority, there is rather explicit legislative history of RFRA in the military context. First, the House Committee on the Judiciary issued House Report 103-88 (May 11, 1993), which stated:

    The Committee recognizes that the religious liberty claims in the context of … the military present far different problems … than they do in civilian settings…. [M]aintaining discipline in our armed forces, [has] been recognized as [a] govermental interest[] of the highest order. Id. at 8.

    The Senate’s Committee on the Judiciary, issued a more detailed analysis in Senate Report 103-11 (July 27, 1993) in a section captioned as “Application of the Act to the Military:”

    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. [emphasis added]  Id. at 11-12.

    While I agree that portions of Judge Ryan’s opinion for the Court were probably unnecessary, I suspect that some of it was, considering Sterling’s counsel and some of her amici, to demonstrate that the case isn’t “cert-worthy.”
    DISCLAIMER: I authored an amicus brief in support of neither party.

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

    I see an appeal to SCOTUS.

  3. afjag says:

    THIS IS WRONG!!! (/s)
    So you’re telling me that just because I belong to an organization whose very foundation is good order and discipline amongst the disparate members that make it up, I can’t put up signs reading, “fight those who do not believe in Allah, nor in the latter day, nor do they prohibit what Allah and His Apostle have prohibited, nor follow the religion of truth, out of those who have been given the Book, until they pay the tax in acknowledgment of superiority and they are in a state of subjection” or “slaves, submit yourselves to your masters with all respect, not only to the good and gentle but also to the cruel?”
    Come to think of it, at least with the Quran quote, I’d probably have a better argument than the accused as it is at least clearly religious. Give me a break.

  4. Adam Frey says:

    Unfortunately, the legislative history of RFRA doesn’t provide a tremendous amount of context to how it should be applied to the military.  The House and Senate versions just sort of acknowledge that applying it to the military could be tricky, particularly in light of Goldman v. U.S. (the pre-RFRA case where SCOTUS ruled that there’s an extreme deference to the military in First Amendment cases).  The text of RFRA itself is silent on how it applies to the military.  The best case one can make is that the military’s interest in GOAD should get hefty consideration by the courts in the “compelling government interest” part of the test.
    My own position is that if you’re in the military and you’re going to invoke RFRA, you need to be doing it before the fact and not after.  The DOD has an entire RFRA accommodation regulation which, at least in the abstract, spells out how you’re supposed to be going about getting an accommodation.  “They took my signs” isn’t enough and Sterling needed to go through her supervisory chain to spell out why she needed an exception to policy.  That said, the court is also correct that Sterling needs to make the case that her religion is actually being impaired by removing the signs.  For example, some observant Jews have an explicit belief that they need to wear a box with their prayers on their foreheads at certain times of the day.  I seriously doubt that Sterling had an overt Christian belief that she needs to have Bible verses on her desk.
    RFRA may become an interesting area of contention for the military in the next few years, as I’ve seen an uptick of these cases lately (mostly in the civil context). I authored an article on how the new DoD Instruction on RFRA should be applied, which was published in the Air Force Law Review last January, if anyone wants to read it.

  5. Zachary D Spilman says:

    I don’t see anything in CAAF’s decision that supports the notion that a service member should have to invoke RFRA before the fact. Rather, Judge Ryan makes clear that:

    Appellant’s failure to seek an exemption does not prevent her from invoking RFRA. . .

    Slip op. at 20 (emphasis added).

    The practical reality of this case is that there’s just no evidence to support the assertion that the order to remove the signs constituted a burden (nevermind a substantial one) on Sterling’s exercise of religion.

    The order was no different from any number of other minor restrictions on religious activity. A person, for example, might be prohibited from praying on the rifle range during live fire exercises but allowed to pray in the range office; might be prohibited from having a crucifix tattoo on their face but allowed to wear a crucifix around their neck; might be prohibited from killing a goat in their barracks room but allowed to participate in a ceremony at a house of worship. None of those restrictions are much of a burden (if any burden at all) on the exercise of religion.

    And in this case Sterling was prohibited from placing signs in her shared workplace (because of their potential for disruption, but the reason doesn’t really matter). She still, however, could have had them in her car, her barracks room, her wall locker, inside her cover, inside her clothes, tattooed on her body, and in innumerable other places. She just couldn’t have them in her shared workspace.

    CAAF rightly concluded that “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. This is true no matter the test employed. Slip op. at 15 n.5.

  6. Adam Frey says:

    I won’t disagree with your analysis.  And no, RFRA doesn’t have to be invoked before the fact.  It really helps as a practical reality, though.
    My favorite case to cite on the “substantial burden” test is Henderson v. Kennedy, 253 F.3d 12 (2001), which ruled against a Christian group which wanted to sell t-shirts on the National Mall as part of their duty to spread the Gospel. The court really nitpicked this, finding that they hadn’t proven that their duty to evangelize was not so specific that they had a proven religious mandate to sell t-shirts on the Mall.  This is often where you can win your cases–if the member is not averring a specific religious mandate to engage in the very narrow activity *and* the member can do the activity elsewhere or elsewhen, you don’t even have to get into compelling interest and narrow tailoring.  
    Of course, if Sterling had claimed that Jesus specifically told her to put signs on her desk, we’d be arguing something else.

  7. Zachary D Spilman says:

    What makes this case so interesting, Adam Frey, is that CAAF accepted arguendo that Sterling’s placement of the signs was a sincere exercise of religion:

    In this case, the record does not clearly address whether Appellant’s conduct was based on a “sincerely held religious belief” or motivated by animosity toward her chain of command. While Appellant testified that the signs were religious, arranged to mimic the Trinity, and were “personal .… mental reminder[s],” she also only raised religion as an explanation for the signs in the middle of trial, and some of her testimony arguably indicates that the signs were actually a response to contentious relationships at work, including with SSgt Alexander. Moreover, the NMCCA’s factual analysis, which is not clearly erroneous, emphasizes this nonreligious basis for the signs. 

    Yet, whether her conduct was based on a sincerely held religious belief is an intensely fact-based inquiry and is beyond the purview of this Court. We could simply hold that it was her burden to affirmatively establish the sincerity of her belief by a preponderance of the evidence at trial and that she failed to do so. However, because we can resolve the case on the basis of Appellant’s failure to establish that the orders to remove the signs were a substantial burden, we will instead assume arguendo that her conduct was based on a sincerely held religious belief.

    Slip op. at 14 (citations omitted). 

  8. Vulture says:

    Z.  I’d take it a step further.  As I recall the size of the signs font was only about 2’ce that CAAF requires their briefs in.  There is nothing gawdy about that.  It seems that the burden should have been on the one giving the order.

  9. Zachary D Spilman says:

    Well, Vulture, that’s not how orders are evaluated, and that overlooks the rest of the circumstances:

    Given these circumstances and the complete absence of evidence that SSgt Alexander either knew the signs were Biblical or ordered them removed for that reason, Appellant has failed to rebut the presumption that the orders were lawful and necessary to further the mission of Appellant’s unit by maintaining good order and discipline. Without question, a junior Marine with a contentious relationship with her superiors posting combative signs in a workspace could undermine good order and discipline. 

    Slip op. at 10-11 (emphasis added).

  10. Hugh Jagman says:

    Yo, afjag, are you being for real or sarcastic?!  If Monifa Sterling’s right to invoke the holy trinity for protection isn’t respected and/or honered, then how can our military accept to win the hearts and minds of people who live in places like Iraq and Ecquador, where people still respect religious faith and going to church and stuff.

  11. Vulture says:

    Z.  A cross on the face is gaudy, a goat body in the barracks is gaudy.  Those are the circumstances at issue.  Not an omnipresent requirement for GOAD.  OK, if “Take that shit down!” is what counts for a lack of evidence that the phases were beyond biblical inference, I guess you are right.

  12. Philip Cave says:

    Appellant had ongoing difficulties and a contentious relationship with many superiors in her command, including SSgt Alexander. While Appellant characterized the difficulties as “people … picking on [her],”


    I am unbeatable in Jesus and no weapon formed against me shall prosper. Living Father, I thank You for fighting my battles and being my defender against those who contend against me. Remind me Holy Spirit that Jesus Christ is my shield and buckler who is unbeatable and will help me defeat every adversary that rises up against me. Lead me to someone today who feels defeated and needs inspiration. In Jesus’ name I pray.  []

    Is it disrespectful to a staff NCO, and perhaps the officers who are appointed over me, and foments discord to place these items in a confrontational in your face manner.  In other words, screw you NCO’s and officers.  That’s how I could interpret these displays.  Nothing religious about that, especially as to the timing of when they were put up.  Had they been up from the beginning, different issue, but isn’t the timing suspicious?  I can certainly see the argument the other way that there was no need to seek succor in religion until the command was picking on her.
    Next someone may be rolling cannon balls across the deck.

  13. Zachary D Spilman says:

    Again, CAAF we “assume[d] arguendo that her conduct was based on a sincerely held religious belief.” Slip op. at 14.

    The court’s decision has nothing whatsoever to do with the existence or fervor of sincere religious belief. 

  14. Dew_Process says:

    The desk signs were in 28 point font.  CAAF’s opinion didn’t mention what the underlying “issues” were with her chain of command – she’d been twice “Not Recommended” for promotion to Corporal for training deficiencies, had been formally counseled for leaving her duty station during work hours to go “down town” without her supervisors knowledge or permission, and twice formally counseled for lying to her chain of command, to include once about going on Emergency Leave.
    There was a further Art. 107, FOS, Charge and Spec, which the members found her not guilty of.
    Add that all to the mix and it’s understandable why they finally court-martialed her, and had no inkling that “religion” somehow had anything to do with her twice refusing her immediate supervisor’s orders to take down the signs.

  15. Vulture says:

    Inkling. Ink-ling.  Writing-that is small.  In 28 point font.
    Yeah.  They had a reason to know this Marine was looking for solace, succor, or savior.

  16. MAJ A says:

    At least one notable SCOTUS journalist thinks that the Court might review the case.