Military High Court: Religious Liberty Does Not Protect Displaying Bible Verses

WASHINGTON, D.C.—Thursday the military’s highest court upheld a U.S. Marine’s dishonorable discharge from the military when the court ruled that the most powerful federal law guaranteeing religious liberty does not apply in the U.S. military in the same manner as for civilians in the private sector, in a case now likely going to the U.S. Supreme Court.

Lance Corporal Monifa Sterling served in the U.S. Marine Corps, assigned to the 8th Communications Battalion. Although other Marines in that office had personal items in the desk spaces, she was ordered to remove three paper strips posting “No weapon formed against me shall prosper,” paraphrasing a Bible verse, Isaiah 54:17.

Sterling was court-martialed in January 2014, where she chose to represent herself without legal counsel. She was convicted of disobeying orders, and dishonorably discharged from the Marines. She then appealed, and again lost.

At that point First Liberty Institute—the largest law firm in the United States exclusively dedicated to protecting religious liberty—took her case, and successfully petitioned the U.S. Court of Appeals for the Armed Forces (the military’s highest court) to review the matter.

Breitbart News reported extensively from the courtroom, where First Liberty asked former U.S. Solicitor General Paul Clement—a legend who has argued over 80 cases before the U.S. Supreme Court—to argue Sterling’s case. Clement and First Liberty argued that Sterling had a right under the Religious Freedom Restoration Act (RFRA) to express her Christian faith by displaying the Bible verses, which she did during a turbulent time for her in the Marine Corps.

On Aug. 10, the Court of Appeals for the Armed Forces in United States v. Sterling ruled against Sterling by a 4-1 vote, holding that the facts of her case did not meet the legal requirements to assert RFRA.

RFRA commands that, “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” The “exercise of religion” broadly includes “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”

As the Supreme Court reaffirmed in its famous 2014 RFRA case, Burwell v. Hobby Lobby Stores, a “religious exercise under RFRA involves not only belief and profession but the performance of (or abstention from) physical acts that are engaged in for religious reasons.” The Supreme Court has also made clear that courts must be deferential to parties when they claim that they have a sincere religious beliefs, and not inquire “whether the petitioner … correctly perceived the commands of [his or her] faith,” and must not “differentiate among bona fide faiths.”

As the military court acknowledged in Sterling, because RFRA “applies to every ‘branch, department agency, instrumentality, and official (or other person acting under color of law) of the United States,’ [it] also applies in the military context.”

Judge Margaret Ryan wrote for the D.C.-based appeals court that this is not “a case where the practice at issue was either patently religious … or one where it was not but a government actor somehow knew that practice was religious and prohibited it on that basis.”

The court held that:

… while the posting of signs was claimed to be religiously motivated in part and thus falls within RFRA’s expansive definition of “religious exercise,” Appellant has nonetheless failed to identify the sincerely held religious belief that made placing the signs important to her exercise of religion … We decline Appellant’s invitation to conclude that any interference at all with a religiously motivated action constitutes a substantial burden, particularly where the claimant did not bother to either inform the government that the action was religious or seek an available accommodation.

The court reasoned that Sterling never explicitly told her superiors that these were Bible verses and never told her supervisor that “they were important to her religion.” The court held that not all impediments to expressing religious beliefs are a “substantial burden” on exercising religion, and that only government impairments of important religious requirements substantially burden someone’s faith.

The court also found that Sterling seemed to be “locked in an antagonistic relationship with her superiors,” and seemed to think that the posting of the Bible verses was a form of passive-aggressive rebellion against their authority.

The court also noted that Sterling’s chain of command decided she was not a great Marine. Her supervisors claimed that she “cannot be relied upon to perform the simplest of tasks without 24/7 supervision [and] has not shown the discipline, professional growth, bearing, maturity or leadership required to be a Marine.”

The court finally faulted Sterling for not requesting an accommodation of her faith, and insisted that she would be required to obey her supervisor’s orders while waiting for a ruling on her request. The judges acknowledged that RFRA does not require that a person exhaust any such administrative options before expressing their faith, and that some federal appeals courts have held that is no such requirement, but sided with other courts that held to the contrary.

Judge Kevin Ohlson vigorously dissented from the majority’s opinion, beginning his lengthy analysis by declaring that RFRA:

… 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.

Ohlson discounted the majority’s exploring Sterling’s substandard performance, pointing out that “RFRA does not predicate its applicability on the obedience, punctuality, demeanor, or performance of the person engaging in religious exercise.”

The dissenting judge found, “At trial, [Lance Corporal] Sterling adequately demonstrated that the actions for which she was being court-martialed constituted ‘religious’ conduct.” He went on to say that such conduct must be sincere in order to be protected by RFRA, instead of someone merely citing religion as an excuse.

He also faults the majority for creating a “notice requirement” by reasoning that Sterling had to inform her superior’s of her religious beliefs in order to claim RFRA, and additionally insisted that the case needed to be sent back to the lower court to make a factual finding on whether Sterling’s assertions that she was motivated by a desire to express her religious views were sincere.

Ohlson accordingly concluded that he must dissent, because the court’s decision “imposes a legal framework that unnecessarily curtails the religious freedom of our nation’s servicemembers.”

As Breitbart Texas reported, First Liberty President Kelly Shackelford reacted to today’s decision by calling it “absolutely outrageous” and saying it sets a “terrible precedent,” vowing that First Liberty Institute and Paul Clement would promptly petition the U.S. Supreme Court to take this case.

Breitbart News Senior Legal Editor Ken Klukowski also practices law as an attorney at First Liberty Institute. Follow him on Twitter @kenklukowski.