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).