This case came to my attention by way of a friend who is deeply concerned that our religious liberties are eroding. This is the view I saw first:
According to First Liberty:
United States Marine Corps Lance Corporal (LCpl) Monifa Sterling was court-martialed after she refused to take down Bible verses she had posted in her workspace and for reposting the verses after her supervisor threw them in the trash. A trial court ruled against Sterling, giving her a bad conduct discharge and reducing her rank.
And if that’s the only story, it seems like a blatant religious liberties issue. But of course there’s two sides to every story. According to the Marines, the postings were not identified as religious initially, and Sterling repeatedly disobeyed orders; the court martial had to do with that, not any persecution.
To highlight this rift in the understanding of the facts, look at the news coverage. Yesterday in my Intro to Sociology class, we played a game of “match the headline to the news source.” It works as well for opinion pieces as for actual news articles! My class did a great job of identifying which was Fox News and which was Huffington Post, which left the Washington Post in the middle.
The HuffPo blog article has already decided that she’s a bad Marine; Fox News opinion has already decided that the most important element of the court martial was the Bible verse. Both of these are the type of contentious statements that will reinforce what you already want to believe and do nothing to communicate to those who disagree. The WaPo headline is closest to accurate; there is some argument regarding when she initially claimed religious persecution.
If you want to actually look at the source texts, it’s all posted at the Court of Appeals for the Armed Forces. The case was argued this week, with superstar attorney Paul Clement making his first appearance in military courts to lead the “religious liberty” charge. If Clement fails in his challenge, certainly he will appeal to the Supreme Court – whether they’ll hear the challenge or defer to the military courts is in question.
The Religious Freedom Restoration Act states that the government cannot substantially burden the free exercise of religion unless there is a compelling governmental interest and this is the least restrictive means of doing so. The lower court (the U.S. Navy-Marine Corps Court of Criminal Appeals) did not believe that her behavior was religious exercise – thus, RFRA would not be triggered. Clement contents it was, and is. The brief for the appellee states that Sterling did not notify her NCO that the notes in question were religious in nature, nor did she ever request for religious accommodations, nor did she raise a claim of religious discrimination in the earliest days of the suit. One of the questions this case addresses is if a person needs to make it clear that their behavior is religiously motivated in order to be protected, or if it absolutely protected by its very nature regardless of if others are aware it’s religious.
Eight amicus briefs are listed with the case.
First, a few dozen members of Congress along with the American Center for Law & Justice writing in defense of the appellant attempt to clarify legislative intent and correct the lower court. They contend that the lower court wrongly decided that the appellant was not actually exercising her religion.
Second is a brief from the Citizens United Foundation! Yes, we are promoting traditional values and restoring the government to
big money citizen control in this case! Quite a few other noteworthy organizations signed on to this one, which focuses on the initial order to remove the signs being unlawful.
Third brief comes from Nine Retired General Officers. The nine retired generals remind us that the purpose of the military is to defend American values – and what is more important than religious freedom? Further, if we fail to protect religious freedom, then we’ll have significant recruitment issues within the military. The brief strongly supports religious expression and brushes over Sterling’s choice not to follow procedures for accommodation. They do write that “Service members do not turn off their religiosity until they are given permission to exercise or express it. ” (p. 12) How sustainable this is? I work at a public college; certainly my religious freedom is protected by law. But if a holy day were coming and I would not be at work that day, I would still have to follow proper procedure to find a substitute teacher and notify my leadership that I wouldn’t be in class that day. I’m not sure if I buy this argument that a person can demand their religious freedom without proper notice – regardless of the context. (At this point I’m referring to her refusal to work on a Sunday afternoon – which again, the briefs defending her largely brush over.) The nine generals preposterously claim that if the ruling from the lower court stands, then service members might worry ” about whether their religious expression, like cries out to divine providence, might result in punishment. ” (p. 12) Are intentionally printed sheets of paper and dogged refusal to show up for duty the same as a spur-of-the-moment prayer in combat? What is a parallel example, and what is a false equivalency?
Fourth brief comes from 10 states, mainly from the south and west. They don’t explicitly support either party but do want to make it known that they don’t believe that RFRA was applied accurately. This is similar to what the first brief says, but in that brief they are explicitly defending Sterling. The states here don’t want to weigh in on the compelling government burden/least restrictive means elements, but at least want to make it known that she was exercising her religion.
Up fifth is a brief from the Alliance Defending Freedom and Chaplain Alliance for Religious Liberty, defending Sterling’s actions. They argue that the request to take down the notes had no valid military purpose – the Marines contend otherwise. (For more on the valid military purpose, compare Clement’s argument in appellant brief pp. 32-36 with the military’s argument in appellee brief pp. 64-69 )
The sixth brief is from the Aleph Institute & the Becket Fund for Religious Liberty & systematically dismantles everything the appellee is standing for. I mean, how many more ways can I write that they’re defending Sterling? Again creating an equivalency between inspirational/ potentially vaguely threatening quotations with family photos, again saying that it’s religious expression regardless of it she called it such – we should be familiar with all this by now.
The seventh comes from a rabbi & the Thomas More Society. This one reinforces the belief that we are a nation built on Judeo-Christian values, and as such, these need to be protected at all stages.
Finally, the eighth brief comes from Americans United for the Separation of Church and State, Jewish Social Policy Action Network, and People for the American Way, all opposing Sterling’s case. This brief argues that Sterling was not substantially burdened, there was a compelling government interest, and they did follow the least restrictive means. She should have requested an accommodation if it were legitimately a religious expression.
Prior to this case I had not listened through oral arguments in a military court. What stood out to me as I listened was just how much the judged focused on the procedural element – unsurprising, but still striking in contrast to how the Supreme Court cases I listen to talk more about substantive rights. Clement seemed a bit out of his element, not directly answering the questions but rather reframing the issue to be more on the territory he’s used to. The attorney on behalf the Marines claimed that religion was not invoked in the early confrontations, and that if it were a religious issue, proper procedure would have been to file a form requesting an accommodation. The discussion goes in circles, questioning if a right as critical as free exercise of religion needs to have an accommodation, or if proper deference to authority is more important.
If the CAAF affirms the lower court’s rulings, I have no doubt that it will be quickly appealed to the Supreme Court. But will the SCOTUS defer to the military on the whole, or choose to hear it?
More links to briefs and audio available at CAAFLOG.