Bench Memos

Law & the Courts

Military Court Botches RFRA

By a vote of 4-1 yesterday in United States v. Sterling, the U.S. Court of Appeals for the Armed Forces adopted a strangely narrow reading of the threshold provisions of the federal Religious Freedom Restoration Act. The court’s ruling diminishes the religious-liberty rights of all members of our armed forces.

Lance corporal Monifa Sterling printed three copies of the words “No weapon formed against me shall prosper” in 28-point font or smaller and taped the signs above three sides of her desk. When her superior ordered her to remove the signs, she refused. After the superior removed the signs herself, Sterling replaced them. And again for another round. Based on various conduct, including (but not limited to) this incident, Sterling was court-martialed and convicted of four counts of disobeying the lawful order of an officer and of other counts. She argued that she posted the signs for religious reasons—she drew the text from a biblical verse, and she explained that the triple posting invoked the Trinity—and she asserted her rights under RFRA.

In its opinion, the majority holds that Sterling failed even to establish a prima facie claim under RFRA—that she failed, that is, to establish that the military had substantially burdened her exercise of religion (such that the military would have to justify its burden under RFRA’s strict-scrutiny test). The majority acknowledges that RFRA “applies in the military context” and it also “assume[s] arguendo that her conduct was based on a sincerely held religious belief.” But it holds that she failed to establish that the military had imposed a “substantial” burden on her conduct.

How, you might wonder, could her supervisor’s prohibition of her conduct not amount to a substantial burden on that conduct? The majority’s reasoning, as best I can discern it, is that Sterling, in order to show a substantial burden, somehow had to “demonstrate ‘an honest belief that the practice is important to [her] free exercise of religion.’” (Slip op. at 16 (internal citation omitted.) But why doesn’t the majority’s arguendo assumption that Sterling was engaged in a sincere exercise of religion satisfy any such requirement? And how can Sterling be required to show that her conduct was “important” when RFRA, as the majority notes a few pages earlier, defines “religious exercise” as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief”? 

The majority cites “two additional salient facts” that supposedly bear (in some indeterminate way) on its substantial-burden inquiry. First, it observes that Sterling never told her supervisor that the signs, which were not “not, like the wearing of a hijab, obviously religious, … even had a religious connotation, let alone that they were important to her religion.” “Requiring that minimal step,” it asserts, “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.” But the special demands of the “military context” will surely play out in how RFRA’s strict-scrutiny test is applied. What sense does it make to have them alter the substantial-burden inquiry?

Second, the majority observes that Sterling failed to avail herself of military regulations that would have permitted her to request an accommodation. The majority contends that the accommodation process “interposes a de minimis ministerial act, reducing any substantial burden otherwise threatened.” But this seems a sideways means of smuggling in the exhaustion requirement that the majority acknowledges that RFRA does not contain.

Judge Ohlson’s dissent is much stronger on all these points. Here’s his opening paragraph (citation omitted):

In my view, the Religious Freedom Restoration Act 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.

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