United States v. Sterling

• Decision Date: 10 August 2016
• Docket Number: 16-0223,15-0510
• Court: United States Court of Appeals, Armed Forces Court of Appeals
• Parties: UNITED STATES Appellee/Cross-Appellant v. Monifa J. STERLING, Lance Corporal United States Marine Corps, Appellant/Cross-Appellee Crim. App. No. 201400150

UNITED STATES Appellee/Cross-Appellant v. Monifa J. STERLING, Lance Corporal United States Marine Corps, Appellant/Cross-Appellee

Crim. App. No. 201400150

Nos. 15-0510, 16-0223

United States Court of Appeals, Armed Forces

August 10, 2016

Argued April 27, 2016

Military Judges: C. M. Greer and N. A. Martz

For Appellant/Cross-Appellee: Paul D. Clement, Esq. (argued) Major John J. Stephens, USMC, Michael D. Berry, Esq., George W. Hicks Jr., Esq., and Michael H. McGinley, Esq. (on brief).

For Appellee/Cross-Appellant: Brian K. Keller, Esq. (argued) Colonel Mark K. Jamison, USMC (on brief).

Amici Curiae for Appellant/Cross-Appellee: J. Mark Brewer, Esq. Michael Connelly, Esq., John S. Miles, Esq., Jeremiah L Morgan, Esq., Robert J. Olson, Esq., William J. Olson, Esq., and Herbert W. Titus, Esq. (on brief) - for Citizens United, Citizens United Foundation, U.S. Justice Foundation, Faith and Action, Public Advocate of the U.S., Inc., Conservative Legal Defense and Education Fund, Institute on the Constitution, E. Ray Moore, and George P. Byrum; Ashley G. Chrysler, Esq., Conor B. Dugan, Esq., and Matthew T. Nelson, Esq. (on brief) - for Nine Retired General Officers; Daniel Briggs, Esq. (on brief) - for Alliance Defending Freedom and Chaplain Alliance for Religious Liberty; Eric Baxter. Esq., and Daniel Blomberg, Esq. (on brief) - for Aleph Institute et al.; Jocelyn Floyd, Esq. (on brief) - for Rabbi Philip Lefkowitz; Robert W. Ash, Esq., Laura B. Hernandez, Esq., and Jay Alan Sekulow, Esq. (on brief) - for Members of Congress, The American Center for Law and Justice, and The Committee to Protect Religious Liberty in the Military; E. Scott Pruitt, Attorney General of Oklahoma, Patrick R. Wyrick, Solicitor General of Oklahoma, and Mithun Mansinghani, Deputy Solicitor General of Oklahoma (on petition) - for the State of Oklahoma.

Amici Curiae for Appellee/Cross-Appellant: Bradley Girard, Esq., and Richard B. Katskee, Esq. (on brief) - for Americans United for Separation of Church and State, Jewish Social Policy Action Network, and People for the American Way Foundation.

Amicus Curiae in Support of Neither Party: E. Scott Pruitt, Attorney General of Oklahoma, Mithun Mansinghani, Deputy Solicitor General of Oklahoma, Adam Paul Laxalt, Attorney General of Nevada, Mark Brnovich, Attorney General of Arizona, Leslie Rutledge, Attorney General of Arkansas, Sam Olens, Attorney General of Georgia, Doug Peterson, Attorney General of Nebraska, Alan Wilson, Attorney General of South Carolina, Ken Paxton, Attorney General of Texas, Sean D. Reyes, Attorney General of Utah, Patrick Morrisey, Attorney General of West Virginia (on brief) - for the States of Oklahoma, Nevada, Arizona, Arkansas, Georgia, Nebraska, South Carolina, Texas, Utah, and West Virginia; Donald G. Rehkopf Jr., Esq. (on petition) - for The Military Religious Freedom Foundation.

Judge RYAN delivered the opinion of the Court, in which Chief Judge ERDMANN, Judge STUCKY, and Senior Judge COX, joined. Judge OHLSON filed a separate dissenting opinion.

OPINION

RYAN JUDGE.

A special court-martial consisting of officer and enlisted members convicted Appellant, contrary to her pleas, of one specification of failing to go to her appointed place of duty, one specification of disrespect toward a superior commissioned officer, and four specifications of disobeying the lawful order of a noncommissioned officer (NCO), in violation of Articles 86, 89, and 91, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 886, 889, 891 (2012). The members sentenced Appellant to a reduction to pay grade E-1 and a bad-conduct discharge. The convening authority approved the sentence as adjudged. The United States Navy-Marine Corps Court of Criminal Appeals (NMCCA) affirmed the findings and sentence. United States v. Sterling, No. NMCCA 201400150, 2015 CCA LEXIS 65, at *2, *30, 2015 WL 832587, at *1, *10 (N-M. Ct. Crim. App. Feb. 26, 2015) (unpublished).

The Religious Freedom Restoration Act (RFRA), 42 U.S.C. 2000bb-1 (2012) (as amended), which, by its own terms, applies to every "branch, department agency, instrumentality, and official (or other person acting under color of law) of the United States, " 42 U.S.C. § 2000bb-2(1), also applies in the military context. Indeed, at least two general orders prescribe the manner in which religious accommodations to rules of general applicability should be processed and facilitated in the military. Dep't of Defense Instr. 1300.17, Accommodation of Religious Practices Within the Military Services (Feb. 10, 2009, Incorporating Change 1, Jan. 22, 2014) [hereinafter DoDI 1300.17]; Dep't of the Navy, Secretary of the Navy Instr. 1730.8B CH-1, Accommodation of Religious Practices (Mar. 28, 2012) [hereinafter SECNAVINST 1730.8B CH-1]. But we note from the outset that this is not the usual case where an individual or group sought an accommodation for an exercise of religion and it was denied. Nor is it a case where the practice at issue was either patently religious, such as the wearing of a hijab, or one where it was not but a government actor somehow knew the practice was religious and prohibited it on that basis. Rather, the claimed exercise of religion at issue in this case involved posting the printed words "[n]o weapon formed against me shall prosper" at a shared workspace in the context of Appellant's contentious relationship with her superiors.

As the NMCCA concluded, Appellant did not inform the person who ordered her to remove the signs that they had had any religious significance to Appellant, the words in context could easily be seen as combative in tone, and the record reflects that their religious connotation was neither revealed nor raised until mid-trial. See Sterling, 2015 CCA LEXIS 65, at *11, *14-15, *19, 2015 WL 832587, at *4, *5, *6. Nor, despite the existence of procedures for seeking a religious accommodation, did Appellant seek one. Sterling, 2015 CCA LEXIS 65, at *15, 2015 WL 832587, at *5. Nonetheless, the following issues are before this Court:

SPECIFIED ISSUES

I. DID APPELLANT ESTABLISH THAT HER CONDUCT IN DISPLAYING SIGNS REFERENCING BIBLICAL PASSAGES IN HER SHARED WORKPLACE CONSTITUTED AN EXERCISE OF RELIGION WITHIN THE MEANING OF THE RELIGIOUS FREEDOM RESTORATION ACT, 42 U.S.C. 2000bb-1 (2012), AS AMENDED? IF SO, DID THE ACTIONS OF HER SUPERIOR NONCOMMISSIONED OFFICER IN ORDERING HER TO TAKE THE SIGNS DOWN, AND IN REMOVING THEM WHEN SHE DID NOT, CONSTITUTE A SUBSTANTIAL BURDEN ON APPELLANT'S EXERCISE OF RELIGION WITHIN THE MEANING OF THE ACT? IF SO, WERE THESE ACTIONS IN FURTHERANCE OF A COMPELLING GOVERNMENT INTEREST AND THE LEAST RESTRICTIVE MEANS OF FURTHERING THAT INTEREST?

II. DID APPELLANT'S SUPERIOR NONCOMMISSIONED OFFICER HAVE A VALID MILITARY PURPOSE IN ORDERING APPELLANT TO REMOVE SIGNS REFERENCING BIBLICAL PASSAGES FROM HER SHARED WORKPLACE?

CERTIFIED ISSUES

I. DID APPELLANT'S FAILURE TO FOLLOW AN INSTRUCTION ON THE ACCOMMODATION OF RELIGIOUS PRACTICES IMPACT HER CLAIM FOR RELIEF UNDER THE RELIGIOUS FREEDOM RESTORATION ACT?

II. DID APPELLANT WAIVE OR FORFEIT HER RELIGIOUS FREEDOM RESTORATION ACT CLAIM OF ERROR BY FAILING TO RAISE IT AT TRIAL?

We hold that the orders to remove the signs were lawful. Appellant's claimed defense to violating those orders under RFRA was preserved, but Appellant has failed to establish a prima facie RFRA case. Moreover, we hold that her failure to either inform her command that the posting of the signs was religiously motivated or seek an accommodation are both relevant to Appellant's failure to establish that the orders to remove the signs constituted a substantial burden on her exercise of religion. Consequently, while the NMCCA's RFRA analysis was flawed, we affirm the decision on other grounds.

I. FACTS

In December 2012, Appellant was assigned to Section-6 (S-6) of the 8th Communications Battalion. Staff Sergeant (SSgt) Alexander was her immediate supervisor. Appellant assisted Marines with their Common Access Cards. Marines sat next to Appellant's desk while she assisted them. The military judge found that, during this time, Appellant shared her desk with another junior Marine.

Appellant had ongoing difficulties and a contentious relationship with many superiors in her command, including SSgt Alexander. While Appellant characterized the difficulties as "people … picking on [her], " from the command's perspective, the difficulties were that:

[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 charges at issue in this case are symptomatic of these deficiencies, and other performance issues, while not the subject of criminal charges, were noted in her service record book. In May 2013, two months after a counseling session for failing to secure a promotion, and on the heels of a confrontation with SSgt Alexander about turning in a completed Marine Corps Institute course, Appellant printed three copies of the words "[n]o weapon formed against me shall prosper, " on 8 1/2- x 11-inch paper in 28-point font or smaller. Appellant cut the signs to size and taped one on the side of her computer tower, one above her computer screen, and one above her desk mailbox. The signs contained no additional information and were large enough for those walking by Appellant's desk and Marines seated at her workspace to read.

SSgt Alexander discovered the signs and ordered Appellant to...