RFRA in the Military: An Update on United States v. Sterling

Yesterday the United States Court of Appeals for the Armed Forces issued it’s decision in United States v. Sterling. Here is a link to the decision: U.S. v. Sterling. The case is interesting for a number of reasons. I will focus on the two main reasons. First, the case addresses the role of RFRA in the military when a soldier is disciplined for conduct claimed to be religious after the discipline is imposed. Second, the case raises an interesting factual problem because as the majority held and the dissent acknowledged as a real possibility, albeit one the dissent argued should have been determined on remand, the soldier in this case may have been asserting a “less-than-genuine religious” belief “as a pretext for inappropriate conduct.” Dissenting opinion at 2 (the language in the majority opinion is even stronger).

The facts of the case, as opposed to their meaning under RFRA, are relatively straightforward. Monifa J. Sterling was court-marshaled by the Marine Corps after several run-ins with commanding officers, the most relevant of which gave rise to the case. Sterling “had ongoing difficulties and a contentious relationship with many superiors in command, including” Staff Sergeant Alexander (her immediate supervisor). U.S. v. Sterling at 5.

The main issue in the case involved three small signs that Sterling posted at her work station, which was shared with another Marine. The signs read: “No weapon formed against me shall prosper.” This language was adapted from the bible, Isaiah 54:17. There was no indication, however, that it was a biblical passage and there was no citation to the bible. The signs were not huge, but they were large enough for people nearby to read (28 point type).

Staff Sergeant Alexander ordered Sterling to take the signs down believing their tone was inappropriate and because the desk was shared with another Marine. At this time there is no evidence that Sergeant Alexander knew the language was from the bible or that it had any religious meaning. There was evidence in the record indicating that Staff Sergeant Alexander thought the language related to Sterling’s difficulties with her. Sterling failed to remove the signs so Staff Sergeant Alexander removed them. Sterling made new ones and posted them. Staff Sergeant Alexander again removed the signs. Sterling was subject to a special court-martial for insubordination in the above described incident and several other incidents that had nothing to do with her religion.

During the court-martial proceeding Sterling explained that the language in the signs was from the bible and that she posted it in three places to represent the trinity. She did so as a reminder and personal message to herself. She also clearly cited to military directives on RFRA, and argued that her rights under RFRA were violated in the incident with Staff Sergeant Alexander. It was these RFRA claims that ultimately made it to the United States Court of Appeals for the Armed Forces.

The majority opinion found that there was no substantial burden on Sterling’s religion, in part, because:

“. . .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. See Wilson v. James, 139 F. Supp. 3d 410, 424–25 (D.D.C. 2015). 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. (citations omitted). 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.” See Sossamon, 560 F.3d at 332. 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.

. . .In evaluating whether taking down the signs constituted a substantial burden on her exercise of religion, we will not ignore two additional salient facts. First, Appellant never told the person who ordered her to take down the signs — which were not, like the wearing of a hijab, obviously religious to most— that they even had a religious connotation, let alone that they were important to her religion. Requiring that minimal step before concluding that an order imposes a substantial burden 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. . . U.S. v. Sterling, at 18 (citations omitted).

Yet, as the dissenting opinion asserts, there are some problems with this analysis. First, whether or not there was a substantial burden on religion–and in fact, whether or not Sterling was even sincerely asserting a religious exercise–requires factual findings that are not appropriate for the appellate court and should be decided on remand. Second, while the military is certainly entitled to a great deal of deference this does not mean that RFRA’s substantial burden requirement is somehow more stringent in the military context. Rather, the military would get increased deference at the next stage of the analysis where the government must demonstrate it’s actions were narrowly tailored to meet a compelling interest. Still, the majority made some excellent arguments that in this case, unlike cases where religious individuals seek accommodations for religious practices such as wearing a hijab, there was no basis for Staff Sergeant Alexander to know at the time of the discipline that there was any religious exercise involved, let alone that taking down the signs and seeking discipline substantially burdened Sterling’s religion.

In the end I think both the majority and the dissent make excellent points. Perhaps it would have been better to analyze whether under these facts the military has a compelling interest in promoting discipline and whether the discipline was narrowly tailored to meet that interest. Recent cases make clear the compelling interest analysis in each case must be viewed under it’s own facts, and while that usually works to the benefit of those asserting rights under RFRA, in this case it might point the other way. There is an oft cited legal saying that good facts make for good decisions and bad facts can make for bad decisions. In this case perhaps bad facts made for the right result, even if that result should have occurred under different reasoning or on remand. One heartening thing is abundantly clear in both the majority and dissenting opinions: military courts will take RFRA claims quite seriously when asserted in a timely fashion. Of course, whether the assertion was timely in this case was at the center of the dispute.

4 thoughts on “RFRA in the Military: An Update on United States v. Sterling

  1. Mark Kagan August 11, 2016 / 10:51 pm

    I was so happy to see that you decided to analyze a religion case unrelated to LGBT issues (please understand, I find them fascinating but there are other interestinf First Amendment issues out there!)
    In that vein I was wondering what you thought about the recent case filed by Charee Stanley a Muslim flight attendant who was fired for refusing to serve alcohol to passengers. Apparently the other flight attendants worked around her request until one of them complained and she was fired.
    I was wondering the merits of her claim and whether the fact she was a Muslim as opposed to say a member of a less politically emotional religion the matter could have worked out differently. I am aware that last issue is not really legal per se but I think it is to the extent any anti Muslim animus (if it existed in this case and I have no idea if it did) motivates litigation and makes accommodation less palatable.
    Thank you for a great blog!
    Mark Kagan

    Like

    • fravitch12 August 12, 2016 / 2:35 am

      Mark, thank you for the comment. Stanley’s case is interesting because it is a religious discrimination case against a private employer so raises questions under Title VII of the Civil Rights Act of 1964 and the Michigan Elliott-Larsen Act. Employers generally do not have a duty to accommodate when doing so would create an undue burden, especially when it prevents the employee from performing core job functions. Of course, whether accomodating a flight attendant who cannot serve alcohol raises an undue burden is a key question. Working in Stanley’s favor is that the airline had agreed to accommodate her and was able to do so for a couple of months. Working against her case is the fact that a colleague filed a complaint alleging the accommodation put a significant burden on other employees. Accommodations that do so are generally disfavored. It will be interesting to see what the detailed facts are as the case proceeds. My guess is that it will be close, but she will probably lose because the protections for religious accommodations under antidiscrimination laws are notoriously weak (I think far too weak in many situations). On the other hand, if she was able to perform all her other job functions and the accommodation did not place any serious burden on her colleagues, she would likely win (and one would have to wonder why the complaint was filed in the first place–was it because the colleague is anti-Muslim, because of personal issues between the two, etc.). The reason the blog primarily focuses on religious feedom vis a vis LGBT and Reproductive Freedom issues is because that’s the primary focus of the book and the culture war issues I am trying to address. Your point is well taken, however, and I will also continue with posts like the one about the Sterling case.

      Like

    • fravitch12 August 19, 2016 / 6:41 pm

      Funny you mention the Harris Funeral Homes case as I am reading it now. The decision just came down yesterday, but I do plan do a post on it as soon as I finish reading the full opinion, which will be either today or Sunday.

      Like

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