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.

Most Popular

PC Culture

Hate-Crime Hoaxes Reflect America’s Sickness

On January 29, tabloid news site TMZ broke the shocking story that Jussie Smollett, a gay black entertainer and progressive activist, had been viciously attacked in Chicago. Two racist white men had fractured his rib, poured bleach on him, and tied a noose around his neck. As they were leaving, they shouted ... Read More
World

Ilhan Omar’s Big Lie

In a viral exchange at a congressional hearing last week, the new congresswoman from Minnesota, Ilhan Omar, who is quickly establishing herself as the most reprehensible member of the House Democratic freshman class despite stiff competition, launched into Elliott Abrams. She accused the former Reagan official ... Read More
U.S.

Questions for Those Who Believed Jussie Smollett

The “we reported the Jussie Smollett case responsibly” contention has been blasted to smithereens. Twitter accounts and headlines in the Washington Post, the New York Times, and the Los Angeles Times reported as fact Jussie Smollett’s wildly implausible allegations, and many other journalists did so as ... Read More
PC Culture

Fake Newspeople

This week, the story of the Jussie Smollett hoax gripped the national media. The story, for those who missed it, went something like this: The Empire actor, who is both black and gay, stated that on a freezing January night in Chicago, in the middle of the polar vortex, he went to a local Subway store to buy a ... Read More
U.S.

White Progressives Are Polarizing America

To understand how far left (and how quickly) the Democratic party has moved, let’s cycle back a very short 20 years. If 1998 Bill Clinton ran in the Democratic primary today, he’d be instantaneously labeled a far-right bigot. His support for the Religious Freedom Restoration Act, the Defense of Marriage Act, ... Read More