Today our firm filed in the U.S. Court of Appeals for the Armed Forces an amicus brief defending the right of a United States Marine to post small signs containing Bible verses at her work station.
Marine Lance Corporal Monifa Sterling printed and taped a paraphrase of Isaiah 54:17 at three places around her workspace: “No weapon formed against me shall prosper.” The three locations were designed to represent the Trinity, that is, the three persons of the Godhead — Father, Son, and Holy Spirit. Her Staff Sergeant twice ordered Sterling to take the display down. Sterling twice refused, explaining that the signs were based on her religion, meant for her alone, and not meant to offend anyone. Sterling was court-martialed for several offenses including disobeying the orders to remove her signs. Sterling appealed her conviction on the grounds that the order to remove her signs violated her First Amendment Free Exercise rights and the Religious Freedom Restoration Act.
In keeping with good amicus practice, our brief made an interesting argument that, remarkably, neither party highlighted. We contended that the order to Sterling to take down her display violated just about every policy, procedure, standard and rule that the Department of Defense and the Department of the Navy (of which the Marine Corps is a part) has put in place to govern religious exercise issues.
First, the government had faulted Sterling for failing to apply for a formal “religious accommodation.” We pointed out that another federal court had addressed that precise issue some years ago (in a case litigated by one of the lawyers in our firm), determining that the military is required to follow its religious accommodation rules regardless of whether a service member formally applies for an accommodation.
We also noted that, contrary to Navy rules, Sterling’s Staff Sergeant failed to involve her commanding officer in the decision to order Sterling to take down her signs. Additionally, we pointed out that Sterling’s chain of command should have but did not involve a military chaplain in the process, since chaplains are the “Navy’s only trained professional religious accommodators.” Finally, we argued, Sterling’s superiors failed to follow Navy rules by failing to find alternative means for Sterling to exercise her religion.
Next, we argued that the court below upheld the order to Sterling not because the content of the signs was problematic, but specifically “because” the signs were religious in nature. This violated clear Supreme Court precedent that the government may not “prohibit[] conduct because it is undertaken for religious reasons.”
Finally, the court below alleged that Sterling’s signs weren’t religious exercise, since they were not “part of a system of religious belief.” Even if that flawed conclusion were true, we argued, federal law protects more than just religious belief, including anything that “reflect[s] the … conscience, moral principles, or religious beliefs.” And even if, as the court below assumed, Sterling’s actions were simply her acting out against her superiors, then the Navy should have considered her activity a protest, in which case Navy rules say that it can only be prohibited if it poses a “clear danger” to unit cohesion — a far cry from the court’s “imagin[ings]” that something “may” or “could” result.