From the Wall of Separation blog:
On Thursday, in a case in which AU filed a friend-of-the-court brief, the U.S. Court of Appeals for the Armed Forces correctly concluded that while religious liberty in the military is, of course, fundamental, it does not give service-members carte blanche to do whatever they please.
The case, United States v. Sterling, was billed by some as presenting the question whether service-members are even allowed to practice their religion. But that simply isn’t what the case was about. Nor can there be any genuine dispute that members of the armed forces have the right to practice their faith.
Marine Lance Cpl. Monifa Sterling was court-martialed for a host of insubordinate acts. She refused to show up for duty. She refused to wear the required uniform. And she had a contentious relationship with her immediate supervisor that led to her, in what appears to have been aggressive nose-thumbing toward her commanding staff sergeant, posting signs around her shared workspace that read “no weapon formed against me shall prosper.”
When the staff sergeant told her to remove the signs, Sterling refused. When her superior took them down, Sterling put them back up. Again she was told to take them down; and again she refused. Six months later, after repeatedly refusing to appear for an assigned duty shift, Sterling was court-martialed. During her court-martial, she stated— for the first time— that the signs were of a religious nature, and during her appeal she argued that they were protected religious exercise under the Religious Freedom Restoration Act (RFRA). The court didn’t buy it, and neither should you.
The Armed Forces are committed to allowing religious freedom, as they should be. But this was a simple case of repeated insubordination. Sterling didn’t seek any religious exemption— for which there was a clear process— and she didn’t even mention until trial that her posting of the signs was religious. (Indeed, many of the facts point to the signs not being a sincere exercise of her religion.) Instead of making clear her religious claim and seeking an exemption from the general rules regarding military discipline, she tried to muddy the waters by claiming, six months later, that these particular acts of insubordination were religious.
The court held that even if posting the signs was a sincere religious exercise, there was no substantial burden, as is required for protection under RFRA. The court’s reasoning included that she never told her superior that the signs were religious and she did not seek an exemption to post them.
Because Sterling did not take advantage of the military’s established process for accommodating religion, her exercise was not substantially burdened. Those conclusions were correct: When military members are given a process for seeking permission but don’t use it, they shouldn’t be able to say, six months later, that they were burdened by never getting the permission that they didn’t request.
At Americans United we believe that it is paramount to protect religious liberty in the military, and everywhere. Service-members give up a great deal to serve their country; they should not have to give up the right of religious exercise to do so. To that end, we support legitimate claims for religious exemptions. For example, we support religious exemptions to allow Sikhs to grow beards or wear turbans. We also actively oppose religious discrimination and bias in the military. But disingenuous claims of persecution harm both the people whose exercise is actually at risk and the institutions that work hard to protect genuine religious liberty.
Follow Bradley Girard online at @BradleySGirard