According to an opinion issued Thursday morning by the Court of Appeals for the Armed Forces, a U.S. Marine doesn’t have a constitutional right to religious freedom.
The case involves Lance Cpl. Monifa Sterling, who was court-martialed for placing a religious verse at her work station after her supervisor had removed it. Sterling, First Liberty Institute, and a number of former military officers insisted the punishment was unconstitutional and that the Marine was simply exercising her First Amendment-protected religious freedom.
The CAAF determined otherwise:
Appellant has failed to establish that the orders to remove the signs substantially burdened her religious beliefs. While Appellant seeks to cast the substantial burden as caused by the choice between obeying the orders to remove the signs and potentially facing a court-martial, this logic is flawed, as it presumes that taking down the signs constitutes a substantial burden—a burden imposing both secular and religious costs. This is the very legal question to be decided. We reject the argument that every interference with a religiously motivated act constitutes a substantial burden on the exercise of religion.
In this case, Appellant did not present any testimony that the signs were important to her exercise of religion, or that removing the signs would either prevent her from engaging in conduct [her] religion requires, or cause her to “abandon one of the precepts of her religion. While Appellant testified that posting the signs was religiously motivated in part, she did not testify that she believed it is any tenet or practice of her faith to display signs at work. Nor does Appellant’s testimony indicate how complying with the order to remove the signs pressured her to either change or abandon her beliefs or forced her to act contrary to her religious beliefs. Although Appellant did not have to provide evidence that posting signs in her shared workspace was central to her belief system, she did have to provide evidence indicating an honest belief that “the practice [was] important to [her] free exercise of religion.” Contrary to Appellant’s assertions before this Court, the trial evidence does not even begin to establish how the orders to take down the signs interfered with any precept of her religion let alone forced her to choose between a practice or principle important to her faith and disciplinary action.
The court further ruled that Sterling did not attempt to use the Navy’s “accommodation process” to seek an exemption. As a result, it found she lacked a “prima facie” (on its face) case of religious persecution and upheld all of the lower courts’ rulings.
“This is absolutely outrageous,” First Liberty Institute President and CEO Kelly Shackelford said after the court released its opinion. “A few judges decided they could strip a Marine of her constitutional rights just because they didn’t think her beliefs were important enough to be protected. If they can court-martial a Marine over a Bible verse, what’s to stop them from punishing service members for reading the Bible, talking about their faith, or praying?”
Shackelford pledged the case will be appealed to the U.S. Supreme Court, saying the CAAF’s opinion could not be allowed to stand. And there’s good reason to believe there would be plenty of support for his point of view on the high court.
A minority opinion issued by CAAF judge Kevin Ohlson blasted the majority opinion, saying the Religious Freedom Restoration Act provides military service members “with the presumptive right to fully, openly and spontaneously engage in religious exercise.” He wrote that 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,” he added. “I conclude that the majority’s disposition of the instant case is not consistent with these rights under RFRA.
“Moreover, I conclude that the majority’s analysis of the underlying legal issue raises the prospect that other servicemembers in the future may be subjected to conviction at court-martial for merely engaging in religious exercise that is entitled to protection under the statute. Therefore, I must respectfully dissent.”
Mike Berry, First Liberty Institute’s Director of Military Affairs, noted that Gen. George Patton prayed on the eve of battle. According to the CAAF’s majority opinion, however, he could have been court-martialed for that act, if he couldn’t prove how important prayer was to him.
“This is shameful, it’s wrong, and it sets a terrible precedent, jeopardizing the constitutional rights of every single man and woman in military service,” Shackelford added.
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