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Religious Liberty Is a Little Different in the Military

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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How much leeway should Marines have to express their religious beliefs? According to Congress, religious liberty laws apply with full force to the military. But last week the highest court in the armed forces put some limits on claims by active-duty personnel. Those limits cut against recent trends in Supreme Court jurisprudence -- but they make a lot of sense in a military context, even if they shouldn’t necessarily be copied by other courts for civilians.

The case arose when Lance Corporal Monifa Sterling was charged before a court-martial with six counts of disrespect, disobedience and failing to do her job. The record shows that Sterling’s chain of command was frustrated with her poor performance and recalcitrant attitude. But what got her charged was her refusal to take down three identical signs that she hung in the work cubicle she shared with another Marine. The signs read, “No weapon formed against me shall prosper.”

This was a personalized paraphrase of Isaiah 54:17, “No weapon that is formed against thee shall prosper.” Although the language would be immediately familiar to anyone with an intense biblical education, the words aren’t exactly the most famous ones in the Bible. Sterling’s superiors didn’t know their origin. Sterling never told her superiors that she felt a religious duty to put them up. Her commanding officers interpreted the signs as hostile and Sterling’s refusal to take them down as insubordination.

In the course of her defense -- which she unwisely conducted herself -- Sterling for the first time claimed that she had a religious liberty right to post the biblical allusion. Notwithstanding her suggestion, the court-martial demoted her and gave her a bad conduct discharge.

Sterling appealed, and the U.S. Court of Appeals for the Armed Forces by a 4-1 vote upheld the denial of her religious liberty claims.

The court began by affirming that the Religious Freedom Restoration Act applies to the armed forces -- because nothing in the law says otherwise. And probably for the same reason, it declined to say overtly that special circumstances in the military give the law a different meaning for uniformed personnel than for civilians. Yet in practice, the court inevitably had to deal with the distinctive command structure of the military.

The court gave two main reasons for rejecting Sterling’s claim -- both highly significant for the interpretation of RFRA.

First, it said that Sterling had not made out a claim of religious liberty because she never told her superiors that she had a religious reason to post the signs. On the surface, this seems to run against the logic of U.S. Supreme Court’s 2015 holding that a job applicant to Abercrombie and Fitch didn’t have tell the employer that she needed a religious accommodation to wear her hijab on the job.

The appeals court distinguished Sterling’s case by saying that unlike the hijab, the scriptural reference in the signs wasn’t obviously religious. I don’t think that distinction holds water, because a religious liberty claim can’t depend on how familiar the religious practice in question is. And the Supreme Court in the Abercrombie case specifically declined to adopt a rule placing the burden on the job applicant to raise the issue of religious burden.

Nevertheless, in the military context, the court was probably correct to say that someone refusing to obey a lawful order should have to give a reason, such as a request for a religious exemption. Otherwise it would quickly become almost impossible to enforce military discipline.

Second, the court said that Sterling hadn’t shown that her religious exercise was substantially burdened as required by the law -- because she hadn’t shown that the signs were “central” to her religion. And the court cited with approval a statement by the D.C. Circuit that the inquiry should focus on “whether the regulation at issue [forces claimants] to engage in conduct that their religion forbids or … prevents them from engaging in conduct their religion requires.”

Again, this holding runs against the general trend of the Supreme Court’s religious liberty jurisprudence. In the Hobby Lobby case, which the court discussed but seemed not to have fully grasped, the Supreme Court rather pointedly omitted any discussion of “centrality.” That makes sense, because a religious belief or practice could be substantially burdened even if it weren’t “central.” Imagine a law that prohibited lighting candles -- including Hanukkah candles. That would surely trigger RFRA (not to mention the free exercise clause of the Constitution), even though by no reasonable measure can lighting Hanukkah candles be described as “central” to traditional Judaism.

What’s more, lots of religious activities are recommended but not obligatory -- and RFRA covers those, notwithstanding the D.C. Circuit’s comment.

Yet in a military context, it’s altogether more plausible for courts to look at the centrality of religious motive, and even perhaps to consider whether a given religious act is mandatory. Serving in the military requires a degree of conformity and obedience absent from any other context. Too broad a body of exceptions would undercut uniformity and discipline.

The Supreme Court has the statutory authority to review decisions of the Court of Appeals for the Armed Forces, even though the latter isn’t part of the judicial system established by Article III of the Constitution. If the justices want to get RFRA right nationally, they might consider taking Sterling’s case. But if they do, they should recognize that in practice, RFRA needs to be applied differently in the armed forces. Probably their best option is not to take the case at all.

  1. For doctrine geeks only: What the court should have said was that in the Abercrombie case -- which involved discrimination, not RFRA -- the Supreme Court only held that an employer may be held liable if its decision was motivated by religion. That's not what was at stake here, where the question is the distinct one of what steps a member of the armed forces must take to get an exemption under RFRA.

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Noah Feldman at nfeldman7@bloomberg.net

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Stacey Shick at sshick@bloomberg.net