RUTHFULLY YOURS

Americans serving in the military lost some of their rights earlier this month when the military’s highest court ruled that a Marine has no rights under an important religious freedom law, the Religious Freedom Restoration Act (RFRA). Because this military court has exclusive jurisdiction over many military matters, only the U.S. Supreme Court can restore religious liberty to our service members by choosing to take up the case of United States v. Sterling.

Lance Corporal Monifa Sterling was a young Marine struggling with military life and getting poor reviews from her superiors. She sought encouragement in her Christian faith, posting by her computer a paraphrase of Isaiah 54:17 from the Bible: “No weapons formed against me shall prosper.”

Her supervisor ordered her to remove the Bible verse, even though other Marines in the office had personal and inspirational items in their workspaces. Sterling refused and was court-martialed. She represented herself in court without an attorney, asserting religious liberty, but was convicted and dishonorably discharged from the military.

My law firm, First Liberty Institute, along with Paul Clement, the former U.S. solicitor general who has argued 83 cases before the U.S. Supreme Court, took her case on appeal. Our team presented Sterling’s case before the U.S. Court of Appeals for the Armed Forces (CAAF), arguing that RFRA protected her posting of the Bible verses. RFRA provides that whenever a federal agency or employee imposes a substantial burden on a person’s exercising or expressing faith, the government action is unlawful unless it’s the least restrictive means to achieve a truly compelling national interest.

Yet in a stunning decision, the military court ruled 4–1 that RFRA did not protect Sterling’s religious expression, splitting with other federal appeals courts on two critical points of law.

First, the court held that a religious burden is “substantial” only if it concerns something important to that person’s faith. That’s wrong; RFRA broadly states that it covers “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” Courts have no business deciding what they think is important to your practice of faith.

Instead, what makes a burden substantial is the government’s action. If the state lowers the speed limit on the highway you take to church from 55 to 45 mph, that’s a burden, but it’s not substantial. However, if the state makes it a crime to take that road to church, threatening you with jail, the burden becomes substantial. It has nothing to do with how important it is to you to drive to church.

The court was confused. Sterling could not express religious speech at all, and she faced prosecution for disobeying. Calling that burden “substantial” is an understatement.

Second, the court noted that military service members can ask for accommodations from their chain of command, and said that Sterling must do so before claiming any rights under RFRA.

But RFRA does not include any requirement that a person must navigate bureaucratic mazes before getting legal protection. Pentagon bureaucrats cannot rewrite an act of Congress. Not only that, but someone requesting an accommodation must obey orders while waiting for a decision. That means a soldier, sailor, airman, or Marine might lose religious freedom for months before receiving what federal law promises them on day one.

On both of these points, federal courts of appeals have issued contrary decisions. The Supreme Court needs to resolve these circuit splits.

It’s even more important that the justices take Sterling’s case, because CAAF is the only court that reviews military prosecutions. Without Supreme Court review, millions of service members stationed all over the world will be stripped of protections Congress has provided for them. As a key brief filed by nine retired military generals in this case states, religious freedom is profoundly important to legions of our troops, whose faith is central to their bravery and effectiveness.

These judges seemed skeptical of Lance Corporal Sterling’s claims because she struggled to adjust to military life and wasn’t a model Marine. But that’s not the law. RFRA treats all Americans equally, giving the same protections to America best Marine as it does to one who is underperforming.

Each member of our Armed Forces puts himself or herself on the line to protect the rights of more than 300 million Americans. All of them make daily sacrifices; some even give up their very lives.

But they don’t sacrifice their basic rights. Although military life is more restricted that civilian life, when Congress passes a law saying that every part of the federal government — including the military — must respect certain rights, every court must follow that law.

RFRA protects Lance Corporal Monifa Sterling. The Supreme Court must correct the lower court’s mistake for the sake of all Americans, especially our men and women in uniform.

— Kelly J. Shackelford is the president and chief executive officer of First Liberty Institute, the largest law firm in America exclusively dedicated to protecting religious liberty.