Today’s SCOTUS order list includes the following:

CERTIORARI DENIED

16-814 STERLING, MONIFA J. V. UNITED STATES

In United States v. Sterling, 75 M.J. 407 (C.A.A.F. Aug. 10, 2016) (CAAFlog case page), part of our #8 Military Justice Story of 2016, CAAF found that disobedience of an order could qualify for protection under the Religious Freedom Restoration Act (RFRA), however the majority concluded that the appellant (who represented herself at trial) failed to establish that the order she violated substantially burdened her exercise of religion.

Thanks to reader John Marshall for the heads up.

On Friday the Supreme Court requested a response to the cert. petition in Sterling v. United States, No. 16-814 (CAAFlog case page).

Two cases tie for the #8 spot on this year’s list: United States v. Sterling, 75 M.J. 407 (C.A.A.F. Aug. 10, 2016), cert. pet. filed, __ S.Ct. __ (Dec. 23, 2016) (CAAFlog case page), and the continuing saga of the court-martial prosecution of Army Sergeant Robert “Bowe” Bergdahl (CAAFlog news page).

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Petition available here.

(CAAFlog case page)

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).

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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.

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)

CAAF will hear oral argument in the Marine Corps case of United States v. Sterling, No.s 15-0510/MC & 16-0223/MC (CAAFlog case page), on Wednesday, April 27, 2016, at 9:30 a.m. The case presents specified and certified issues that challenge the lawfulness of an order given to Sterling – a Marine lance corporal (E-3) who posted small, purportedly-religious signs in her workspace – to remove the signs, and also whether (and if so, how) the Religious Freedom Restoration Act applies to Sterling’s conduct:

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?

Contrary to her pleas of not guilty 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 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 asserts that they represented the Christian trinity and were posted as an expression of her religious belief. CAAF’s review focuses on the order to remove the signs.

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In the Marine Corps case of United States v. Sterling, No. 15-0510/MC (previously discussed here and here and here), CAAF will consider whether (and, if so, how) the Religious Freedom Restoration Act (RFRA) applies to an order given to the appellant – a Marine Lance Corporal who posted small, sort-of religious signs in her workspace – to remove the signs. In an unpublished opinion (available here) the NMCCA found the order to remove the sign to be lawful and that it didn’t trigger RFRA. CAAF then specified two issues for review:

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?

The Judge Advocate General of the Navy has now certified two additional – but in many ways similar – 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?

Additionally, the appellant has filed her brief on the specified issues. It is available here.

Today CAAF specified two issues for review in the Marine Corps case of United States v. Sterling, No. 15-0510/MC (CAAFlog case page):

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 noted the petition for review in the Marine Corps case United States v. Sterling, No. 15-0510/MC, in this post. The case asserts a violation of the Religious Freedom Restoration Act (RFRA) in the application of a military order.

Friend of CAAFlog Don Rehkoph forwards the Government’s answer to the petition for grant of review (available here), as well as an amicus brief he authored on behalf of the Military Religious Freedom Foundation and in support of neither party (available here). Both briefs argue that CAAF should deny review.

The Religious Freedom Restoration Act (RFRA), as modified by the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000bb – 2000bb-4, was the central theme in the Supreme Court’s recent decision in Burwell v. Hobby Lobby Stores, Inc., 573 U.S. __, (2014). Attorney Paul Clement represented the private parties who sought an exemption from the contraception coverage requirements of the Affordable Care Act. Mr. Clement is now part of an effort to apply RFRA to military orders, appearing pro hac vice on behalf of a Marine Corps appellant who is seeking CAAF review of her court-martial conviction for an orders violation.

The case is United States v. Sterling, No. 15-0510/MC. The NMCCA’s decision is available here. The supplement to the petition for grant of review by CAAF is available here.