Editor’s Note: Yesterday a federal appeals court that deals with military issues handed down a ruling rejecting a case of claimed “religious persecution” brought by Monifa Sterling, a former U.S. Marine. Sterling’s case had been heralded by Religious Right groups as an instance of religious discrimination, but there was more to it. We are pleased to present two views on the case today.

Bradley Girard, Stephen Gey Fellow, AU Legal Department:

Yesterday, 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.

An elite fighting force, Marines are subject to strict discipline.

Ed Beck, ex-Marine and church-state separation activist:

The martyr-mad Religious Right has long strained to find plaintiffs truly worthy of the title. Likewise, one of the delights of First Amendment activism is watching right-wing organizations faceplant over “martyrs” whose stories turn out to be just not so. But their latest lost cause, Monifa Sterling, stands above and beyond any grizzled church-state watchdog’s wildest dreams.

Yesterday’s decision striking down Sterling’s appeal is almost enough to make you feel bad for her attorneys. Sterling, you may recall, is the former U.S. Marine court-martialed and given a Bad Conduct Discharge from the Corps for – if you believe her backers’ yarn – merely refusing to remove a Bible verse she’d taped to the monitor of her office computer.

“The clearest case of a Religious Freedom Restoration Act violation you’ve ever seen!” they say. But if you’re reading this blog you’re well aware: there’s always more to a Religious Right tale.

Having spent four years in the Marines myself, I led Marines, was led by Marines, and served alongside Marines of all characteristics and quality, from some of the finest imaginable to a few of the worst. Contrary to lore, much like in civilian organizations, sometimes people squeak through who just don’t belong.

But in the military the stakes are higher, and behavior which corrodes “good order and discipline” on base at home can quickly lead to failure and death in combat zones overseas. Discipline must be maintained constantly and consistently, and “religious freedom” is no defense. If the system works as it should even those who squeak through boot camp but remain unfit for service will get washed out eventually. Monifa Sterling was washed out, and not a moment too soon.

Sterling’s Bible-verse insubordination was the most minor incident in a string of misbehavior unlike anything I’ve ever seen or heard of, during my enlistment or since. To review:

 * After being counseled for minor infractions by her supervisor, in defiance Sterling posted a Bible verse on her computer: “No weapon formed against me shall prosper.” But not just a Bible verse, a modified Bible verse. And not just on her computer, but on a computer shared with a junior Marine. And not just on the monitor, but on the computer tower itself, and above her office mailbox. After Sterling refused an order to remove them, her supervisor took them down. Sterling replaced them the following day.

Later that year, Sterling:

* Refused to wear the proper uniform, lied to her superiors about having a medical waiver, then refused subsequent orders from multiple other superiors after her lie was discovered;

* Refused direct orders from multiple supervisors, including her commanding officer, to work at an event helping the families of Marines returning from overseas, stating she was “going to take [her] meds and sleep and go to church” instead. On the day of the event, in direct violation of her orders, she did not show up.

Showing an affinity for the victimhood-wallowing of the Religious Right that soon rushed to defend her, at trial Sterling characterized subsequent disciplinary actions by her leaders as “people…picking on [her].” However, when I first read the facts of her case, the phrase “failure to adapt” immediately crossed my mind. Sure enough, the court realized this quite clearly, citing a particularly ruthless bit of testimony:

“[Appellant] fails to provide a positive contribution to the unit or Corps. [Appellant] cannot be relied upon to perform the simplest of tasks without 24/7 supervision. [Appellant] has not shown the discipline, professional growth, bearing, maturity or leadership required to be a Marine. Ultimately [Appellant] takes up [the] majority of the Chain of Command’s time dealing with her issues that result from nothing more than her failure to adapt to military life.”

The Religious Right, being what it is, tried to hide that deluge of corrosive insubordination behind a piece of paper taped to a monitor (that turned out to be 3, alas). Yet, again, they could have hardly picked a worse plaintiff. Sterling’s supervisor had no idea the phrase was biblical, and Sterling never bothered to inform her.

And, most telling, Sterling both didn’t bother to utilize her RFRA-based right to appeal her supervisor’s order at the time, and never even raised a “religious freedom” defense until halfway through her trial. In the end, her supervisor’s orders were ruled lawful, and Sterling’s gross insubordination – in that instance and every other – were what sealed her appeal’s fate.

Simply put, any person who behaves as Monifa Sterling did does not belong in the United States Marine Corps. Her flagrant and repeated insubordination would, should, and by the nature of military life must result in the sort of early and hearteningly-swift discharge that this court was right to affirm.