Marine fights court martial over Scripture signs at work

Should service members be allowed to post a passage of Scripture in their personal workspace? Is such an act protected under federal law and military regulations as an “exercise of religion?”

Those are the questions at issue in a case working its way through the military appeals court system. The answer may set an important precedent with respect to the applicability of the Federal Religious Freedom Restoration Act (RFRA) to the military.

Marine veteran Monifa J. Sterling was convicted in a court-martial at Camp LeJeune, N.C., of disobeying an order from her superior to remove three Bible passages she had placed in her workplace. The signs, printed on small strips of paper, contained a personalization of Isaiah 54:17 and said, “No weapon formed against me shall prosper.”

As a consequence of her conviction, Sterling was demoted in rank from lance corporal to private and given a bad conduct discharge from the Marine Corps that will become permanent part of her military record.

Sterling’s supervisor, a staff sergeant who had also been her drill instructor during basic training, took the signs down herself after Sterling refused to do so. According to court documents, the staff sergeant “did not like their tone.”

But was that order a lawful one? The Navy-Marine Corps Court of Criminal Appeals, which reviewed and upheld the conviction, said the trial judge ruled the orders were lawful because “other service members come to [the] accused’s workspace for assistance at which time they could have seen the signs.”

“Courts are supposed to deal with facts, not ‘could have’ or ‘might have,’” said Michael Berry, senior counsel and director of military affairs at Liberty Institute, the religious liberty law firm representing Sterling. “There is no evidence that anyone did see it and became offended.”

The trial judge and the Navy-Marine Corps appeals court disagreed that Sterling’s posting of the signs in her workplace was an “exercise” of religion.

“The record supports the conclusion that the appellant was simply placing what she believed to be personal reminders that those she considered adversaries could not harm her,” the appeals court’s written opinion stated. “Such action does not trigger the RFRA.”

Berry said the court’s refusal to accept the religious content of Sterling’s sign is the most egregious aspect of its opinion.

“That is so dangerous for an arm of the government, the judiciary, to be able to determine or dictate what is or is not religious belief,” he said. “That cannot stand.”

The Navy-Marine Corps appeals court suggested Sterling should have requested and obtained a formal religious accommodation exception to enable her to display the signs. But a major revision to Department of Defense policy on accommodation of religious practices within the military services, which took effect in January 2014, presumes all religious expression by a military member is allowed and places the burden of proof on the government to show a compelling interest that such religious expression should be prohibited.

The policy also requires the government to use the “least restrictive means” to further such a compelling interest. Berry argues the government certainly failed by that standard in Sterling’s case.

“The least restrictive means is court-martialing her?” he asked. “No, there are plenty of other ways to remove, or to accomplish whatever government interest they claim to have, short of court-martialing somebody and having a criminal record against them for the rest of their lives.”

Sterling’s legal team—which includes Paul D. Clement, a former U.S. solicitor general who argued and won the Hobby Lobby case before the Supreme Court—has asked the United States Court of Appeals for the Armed Forces (CAAF) to take the case. The CAAF, which is considered one level below the Supreme Court, is likely to decide by July whether to hear Sterling’s appeal, Berry said. If it does take the case and rules in Sterling’s favor, it’s possible the case could be re-tried with the opportunity to use RFRA as a defense.

The Marine Corps did not respond to a request for comment.

Berry acknowledged the RFRA implications of this case may be one reason Clement joined the legal team.

“This is a case of important precedent with respect to whether and how RFRA applies within the military, and I believe that Paul has argued at just about every federal court that exists except for the military courts,” he said. “So this would present him an opportunity to argue a RFRA case in a court where he’s previously not argued before.”