Religious Freedom in the Military as viewed through the Sterling case
By M-VETS Student Advisor Lisa Mathews
The oral arguments in front of the United States Court of Appeals for the Armed Services were held on a cool morning in April 2016 in Washington, DC. The room was packed with JAG, media, and members of think tanks, and the public. Unusually, every seat was filled. About twenty minutes before the arguments began, prominent lawyer and former Solicitor General Paul Clement walked in unceremoniously, though his presence was immediately noticed by onlookers as he made his way to the front of the room and sat down at the lawyer’s table to review his notes. The various conversations around the room were animated as each aspect of the case was being debated vigorously and simultaneously while all were waiting for court to be called to order. It was clear from the intensity of the room that this was an important case for religious freedom in general and for the military in particular. If the appellant, Ms. Sterling, was vindicated, it would mean that a servicemember may ignore a direct order when religious rights are at stake. However, if Ms. Sterling were to lose, the court would seem to be downplaying the importance of religious freedom in the military.
BACKGROUND: MONIFA STERLING
Approximately three years earlier in May 2013, Lance Corporal Monifa Sterling printed three copies of the words “[n]o weapon formed against me shall prosper” and posted them on her shared desk.[1] Ms. Sterling had a challenging history with her job.[2] She had been assigned to Section-6 of the 8th Communications Battalion only five months earlier.[3] She had “ongoing difficulties and a contentious relationship” with many superiors, including her immediate supervisor Staff Sergeant Alexander.[4] Ms. Sterling felt that people were picking on her.[5] Her supervisor said that she was not contributing and could not be relied on to perform even simple tasks.[6]
On the day that she posted the words at her desk, Ms. Sterling’s supervisor saw them and ordered her to remove them since the desk was shared with a junior Marine and because her supervisor did not like the tone of the words.[7] The words were pulled from the Bible, though Ms. Sterling did not tell her supervisor they were religious.[8] Ms. Sterling did not remove the words as ordered, so her supervisor did.[9] The next day, Ms. Sterling re-posted the words and her supervisor again ordered them removed.[10]
Ms. Sterling had other conflicts with supervisors between this event in May and when she was court-martialed eight months later in January 2014.[11] During her court-martial, Ms. Sterling chose to appear without a lawyer, though she was counseled not to. In defending her action defying the order to remove the words from her desk, Ms. Sterling again failed to mention the words were of a religious nature, at least initially. However, days into the court martial, Ms. Sterling raised for the first time the defense that the order to remove the words from her desk violated her religious freedom and the Department of Defense’s (DOD) rule that she may practice her religion as long as it is “within good order [and] discipline.”[12] She referenced DoDI 1300.17 and the Religious Freedom Restoration Act (RFRA). DoDI 1300.17 is the DOD’s instruction for accommodation of religion within the military. RFRA is a law that forbids the government from substantially burdening religious practice unless the action is narrowly construed to accomplish a narrow government interest.[13] Ms. Sterling explained that printing three copies of the words was in the form of the Christian Trinity.[14]
This defense was unsuccessful in her court-martial, however. The military judge held that her supervisor’s order was lawful and “reasonably necessary to safeguard military interests and good order and discipline because other servicemembers could have seen the signs.”[15] The judge also ruled that the order to remove the signs did not interfere with Ms. Sterling’s religious rights.[16] The ruling was affirmed on appeal where the court found that because of the antagonistic relations Ms. Sterling had with her superiors, the words could have been interpreted as combative.[17] The court then addressed her RFRA claim, finding that it did not protect Ms. Sterling’s behavior.[18] Ms. Sterling, now represented by Paul Clement, appealed to the Court of Appeals for the Armed Services.
RFRA
RFRA was passed in 1993 by a nearly-unanimous Congress and signed into law by President Clinton. RFRA’s enactment was a reaction to the Supreme Court case Employment Division v. Smith where the Court ruled that Oregon was permitted to deny unemployment benefits when two counselors at a rehabilitation drug clinic were fired after participating in sacramental peyote use.[19] These two counselors were members of the Native American Church.[20] The Supreme Court found that the law prohibiting drug use did not target religion. That religion was impacted was simply an “incidental effect” of a “generally applicable” law and therefore permissible.[21]
Congress was outraged and swiftly passed RFRA into law. The law states that “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”[22] The law allows the government to substantially burden religious exercise only if the government’s action is “in furtherance of a compelling government interest” and “is the least restrictive means of furthering that compelling government interest.”[23] The requirement that the action be the least restrictive means to further a compelling government interest is commonly known in the law as “strict scrutiny.” This is the highest form of scrutiny that a court can apply to a government action.
Congress’s use of the term “government” means it expected the law to apply to actions taken by all government entities, which certainly includes the military. RFRA was not directed toward the military; however, and by referring broadly to the “government,” RFRA’s strict scrutiny rule automatically swept the military into its reach, even if Congress did not consider what impact this would have. Prior to RFRA, no strict scrutiny rule applied to cases where servicemembers alleged religious freedom violations. In such cases, the military enjoyed broad discretion from courts.
Religion in the Military
How and when religious expression and practice should be allowed in the military has long been a complicated topic. The uniqueness of the situation in which thousands of volunteer Americans (except in rare circumstances of a draft) face the daily rigors of defending a nation in a manner that requires close quarters and absolute discipline adds to the complexity of the problem. While many servicemembers are religious, some are not. The Constitution dictates that the government may not establish a religion – a directive which has been interpreted by the Supreme Court to mean that it must not even go so far as endorse religion in general over non-religion. However, the Constitution also requires protection for citizens to practice religion as they wish. This First Amendment protection is not something servicemembers opt out of when they volunteer to serve. Indeed, one may argue that the emotional and psychological rigors that servicemembers experience while on active duty create a deep need for religion. However, a strong argument can be made that First Amendment protection must be limited at times for the military to function.
While the history of religious jurisprudence for most of the country has been interpreted via a long line of Supreme Court cases, the courts have mostly deferred to military leaders and the Department of Defense to establish policies related to religious practice within the military.[24] Over the years, questions have arisen regarding the true extent to which servicemembers are free to practice their own religion. Some cases have involved allegations of coercion where servicemembers say they were forcefully exposed to religion against their will. Other servicemembers have claimed that the military unnecessarily limited their religious practice.[25]
One case that demonstrates the courts’ reluctance to rule on religious rights is Parker v. Levy. In this case, a doctor who was ordered to train Special Forces felt his assignment would violate his medical ethics, so he chose to disobey his orders.[26] He was court-martialed and sentenced to three years of hard labor. Justice Rehnquist stated in the Court’s opinion that “the different character of the…military mission requires a different application of [First Amendment] protection.” As one researcher explained, “in terms of free speech broadly understood, the Court has taken the stance that its hands are tied in such a way that even contemplating the interests involved would infringe on the military’s expertise in such matters.”[27]
The military, for its part, has long attempted to serve the religious needs of its members. For instance, the military spends $85 million a year on the military chaplaincy.[28] Chaplains play many roles such as counseling servicemembers, saying prayers, leading worship services, and so on, and their presence in the military dates back to the Revolutionary War. The constitutionality of this program within the Army was confirmed in Katcoff v. Marsh where the Second Circuit Court of Appeals stated “the morale of our soldiers, their willingness to serve, and the efficiency of the Army as an instrument for our national defense rests in substantial part on the military chaplaincy, which is vital to our Army’s functioning.”[29] The court reasoned, in part, that deference was owed to Congress for matters relating to military operations.
But, as stated above, in areas where conflict has arisen between members of the military and their assertion of rights, courts have refrained from performing an independent review of the cases and have deferred broadly to the military. However, the tide may have changed (or be changing) since Congress passed RFRA into law. RFRA has already had an impact on military operations since it is responsible for the process which allows servicemembers to make accommodation requests for religious practice that may otherwise violate a military rule. However, since RFRA has not been extensively applied to the military, every case, such as the Sterling case, could have a precedential effect.
THE COURT OF APPEALS RULING
On that crisp day in April 2016 when Ms. Sterling’s case was finally to be heard by the military’s highest court, the arguments started right on time. The government’s lawyer focused on the fact that Ms. Sterling never told her supervisor that the words were of a religious nature, that she never invoked RFRA as a defense for her actions, that she failed to attain permission through the established procedure, and that she had a history of misbehavior which supported her supervisor’s decision to ask that the words be taken down. Mr. Clement argued that Ms. Sterling should not have had to mention that the words were religious to receive religious protection under RFRA and that at some point throughout the process of court-martial, when the court realized that the words were religious in nature, the court should have referred to RFRA, as required by law, to protect her rights.
The judges, for their part, seemed skeptical of both sides. They seemed suspicious of the government’s assertion that Ms. Sterling should have invoked RFRA to her supervisor when she received the order to take down the messages. The average military member is likely unfamiliar with RFRA as a law and requiring them to assert it before enjoying its benefits is not required by the law itself and seems unfair. However, the judges also seemed suspicious of Mr. Clement’s assertion that posting the words constituted religious action even though they were Biblical in origin. The judges noted Ms. Sterling’s pattern of defiant behavior and seemed sympathetic to Ms. Sterling’s supervisor’s view that the words were meant to relay a hostile message.
Following oral arguments and throughout the summer, interested parties waited anxiously for the opinion to be released. Ms. Sterling’s case had been in the news for months. First Liberty, a non-profit religious freedom law firm that took on the case and secured Mr. Clement’s representation, went to great lengths to gain public support. A picture of a smiling Ms. Sterling wearing her uniform was published online alongside her view of what had occurred. Others wondered if First Liberty had chosen the correct case to assert a precedential RFRA argument given that Ms. Sterling was not without blame in other areas of her service and given that she did not follow the established procedure to request permission to post the signs. Others were even more skeptical. A blog entry on the Huffington Post was titled: The Case of Monifa Sterling: How to Turn a Bad Marine into a Persecuted Christian.[30]
Finally, in August of 2016, the Court of Appeals released its ruling. Ms. Sterling did not get the result she wished for. The Court ruled that her supervisor was justified in ordering Ms. Sterling to take the words down especially since the workspace was shared and because the words appeared somewhat volatile.[31] More central to RFRA and its application, the Court ruled that posting words on one’s desk is not a type of “religious practice” that is protected under the law.[32] RFRA defines religious practice to “include any exercise of religion, whether or not compelled by, or central to, a system of religious belief.[33] However, the Court did not believe that Ms. Sterling’s actions fell within this broad definition.
First Liberty has claimed that it will appeal the case to the Supreme Court. It is unknown if the Court will take the case. In the end, this case may stand for the proposition that military procedures must be followed, even when asserting religious rights. But, the case likely does not stand for the proposition that religious freedom is to be ignored by those in command for any articulable reason, either. One wonders how this case would have turned out had Ms. Sterling told her supervisor that the words were from the Bible, or if she had a better relationship with her supervisor. Either way, military leaders are probably relieved at the result since it vindicates their need to make in-the-moment decisions without having the responsibility to determine if a servicemember’s action is related to religion.
Looking back after the years of build-up, press coverage and even representation by a former Solicitor General, the Sterling case ended up not being very precedential. However, observers agree that more cases will come since the military is only getting more diverse. We’ll all have to keep watching.
[1] United States v. Sterling, 75 M.J. 407, 411-13 (C.A.A.F. 2016).
[2] Id.
[3] Id.
[4] Id.
[5] Id
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] See id.
[12] Id.
[13] See 42 U.S. Code § 2000bb-1
[14] Sterling, 75 M.J. at 411-13.
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] 494 U.S. 872 (1990)
[20] Id.
[21] Id at 885.
[22] 42 U.S. section 2000bb-1
[23] Id.
[24] Jeffrey Lakin, Atheists in Foxholes: Examining the Current State of Religious Freedom in the United States Miitary, 9 First Amend. L. Rev, 713, 714 (2011).
[25] Id.
[26] 417 U.S. 733, 735-37 (1974).
[27] Jeffrey Lakin, Atheists in Foxholes: Examining the Current State of Religious Freedom in the United States Miitary, 9 First Amend. L. Rev, 713, 728 (2011).
[28] Julie B. Kaplan, Military Mirrors on the Wall, 95 Yale L.J. 1210 (1986).
[29] Katcoff v. Marsh, 755 F.2d 223, 229 (2d Cir. 1985).
[30] http://www.huffingtonpost.com/chris-rodda/the-case-of-monifa-sterli_b_9028368.html
[31] United States v. Sterling, 75 M.J. 407, 418-19 (C.A.A.F. 2016).
[32] Id.
[33] 42 U.S. Code Section 20000-5 (7).