A North Carolina-based Marine will now get to challenge a court-martial conviction that raises tricky questions about military discipline and religious freedom.
Reinforced by members of Congress and some leading conservative lawyers, former Lance Cpl. Monifa F. Sterling this week convinced the nation’s highest military appeals court to hear a case that started with a biblical quote and led to a demotion and orders for a bad-conduct discharge.
Now, the U.S. Court of Appeals for the Armed Forces will weigh whether the federal Religious Freedom Restoration Act should shield Sterling’s defiance of a command that she remove the biblical quotes from her Camp Lejeune workplace.
“This case is important,” Sterling’s appellate attorney, Michael Berry, said Thursday, adding that it “has the potential to affect the religious freedom of millions of Americans who serve in our armed forces.”
The court’s decision Wednesday to hear Sterling’s court-martial challenge marks a victory, at least for now, for the many advocates who have rallied around Sterling since her 2013 conviction.
Berry, for one, is director of military affairs for the Liberty Institute, a nonprofit religious freedom legal organization based in Plano, Texas.
Forty-two members of Congress, from Republican Rep. Tom McClintock of California and four Texas House Republicans to Reps. Walter Jones and Robert Pittenger of North Carolina, joined with the American Center for Law and Justice in an amicus brief supporting Sterling’s appeal.
Adding even more heft, Sterling’s petition was assisted by Paul Clement, a former solicitor general in the George W. Bush administration who has argued more than 75 cases before the U.S. Supreme Court. Clement will be making his first argument before the military court on Sterling’s behalf.
“Plainly, her conduct was part of a system of religious belief,” Sterling’s petition states.
The Religious Freedom Restoration Act requires that federal laws that “substantially burden” an individual’s exercise of religion must serve a “compelling government interest” and be the “least restrictive” means possible.
Last year, for instance, the Supreme Court ruled that the Affordable Care Act’s so-called “contraceptive mandate” violated the Religious Freedom Restoration Act protections afforded closely held, for-profit corporations. Clement successfully argued that case.
More recently, a federal court relied on the law to support a Sikh ROTC student’s right to wear a beard and turban in accord with his religious beliefs, despite the Army’s clean-face grooming policy.
Government attorneys said Sterling never demonstrated that the Marine Corps had placed a substantial burden on her religious practice.
“She submitted no evidence that she was pressured to change her religious behavior or modify her religious beliefs,” government attorneys argued in one brief. “To the contrary, she refused to modify her behavior, and set her own desires above that of unit cohesion and military discipline.”
Donald G. Rehkopf Jr., an attorney who handles military issues and filed a brief on behalf of the Military Religious Freedom Foundation in the Sterling case, added Thursday that “there are a lot of hurdles for Sterling to overcome long before” the court reaches the underlying merits.
Sterling’s case began in May 2013, when she was working a desk job with the 8th Communication Battalion at Marine Corps Base Camp Lejeune.
A devout Christian, Sterling printed three copies of the biblical quote “no weapon formed against me shall prosper.” She taped one copy atop her computer tower, one above the computer monitor and one above her in-box.
A staff sergeant ordered Sterling to remove the quotes. Sterling refused, so the staff sergeant took them down. The next day, the biblical quotes were back in place. Again, the staff sergeant removed them.
At the time, a military court subsequently noted, Sterling was “locked in an antagonistic relationship with her superiors” that extended beyond the dispute with over the biblical phrases, and she faced several charges of disobeying orders.
“(Sterling’s) misconduct was not minor,” the U.S. Navy-Marine Corps Court of Criminal Appeals wrote in affirming her conviction. “As the Supreme Court has recognized, ‘to accomplish its mission the military must foster instinctive obedience, unity, commitment, and esprit de corps.’”
In reviewing the case, the higher military appeals court will address questions including whether the staff sergeant’s order burdened an exercise of religion and, if it did, whether it was narrowly tailored to serve a compelling government interest.