In US v. Sterling, the Court of Appeals for the Armed Forces recently explained the balance between disobeying orders and religious freedom.
Sterling was a lance corporal in the Marine Corps. She taped a quote to her workstation that read "[n]o weapon formed against me shall prosper." The quote was based on scripture. She did not tell anyone that it was a bible verse. Unfortunately, LCpl Sterling seems to have had a personality conflict with her immediate enlisted supervisor - also a former drill instructor. He ordered her to remove the quote because he did not like it's tone. She refused. The first sergeant ordered her to remove the quote. She refused. The major ordered her to remove the quote. She still refused.
The Marine Corps ultimately opted to prosecute her at a Special Court-martial. She was convicted and demoted to E-1 and discharged from the service. There was no jail.
On appeal, she raised - for the first time - the issue of the Religious Freedom Restoration Act - 42 U.S.C. § 2000bb-2 (4). She also argued that there was no valid military purpose for the order to remove the quote. Spoiler alert - she lost. The Court found that she did not make a prima facie case that the order substantially burdened her exercise of religion under the RFRA. Likewise, they rejected her argument that there was no valid military purpose for the order.
Religious expression and speech are certainly issues that this firm has fought in the past. Years ago we represented a Navy public affairs officer who edited a book of essays that were critical to the Bush Administration and wars in Iraq and Afghanistan. The Sailor was devoutly Catholic. On a Catholic radio program he was asked about Just War Doctrine.
The radio host was asking the officer to explore the dilemma a Catholic service member might face when government policy conflicts with Catholic doctrine. The officer said:
"When [God] says, hey you murdered all those Iraqis...and the servicemembers respond, well George Bush said...I don't know that that is going to be a persuasive answer."
In that case, we fought for the Sailors rights at nonjudicial punishment. He was accused of contemptuous speech towards President Bush. Unfortunately, LCpl Sterling's case was escalated to a criminal court. Unnecessarily, I might add.
The actual balance between military orders and religious freedom, however, is not that difficult. The Sterling case offers a nice reminder of a few principles of law:
1. The legality of an order is a question of law;
2. Lawful orders must relate to a military duty;
3. A military duty includes all activities reasonably necessary to accomplish a mission, or safeguard or promote the morale or good order and discipline of a command;
4. The dictate's of a person's conscience, religion, or personal philosophy cannot justify or excuse the disobedience of a lawful order;
5. A lawful order must have a valid military purpose and be clear, specific, and narrowly drawn;
6. Orders are presumted to be lawful;
7. The burden is on the accused to show that an order is not lawful;
8. Orders must not conflict with statutory or constitutional rights;
9. The RFRA provides that government shall not substantially burden a person's exercise of religion;
10. Substantially burden is not well-defined, but generally means any government requirement that causes a person to significantly modify their behavior or violate their beliefs;
11. Restraints on behavior do not necessarily equate to substantial burdens;
12. The burden is on an individual to show - under the RFRA - that they had a sincerely held religious belief and that the belief was substantially burdened;
13. The test for sincerely held beliefs is subjective;
14. The Department of Defense has procedures for requesting religious accommodations; and,
15. The RFRA does not require an individual to exhaust administrative remedies.