Sterling certiorari petition filed

A petition for a writ of certiorari was filed on December 23, 2016 in the Marine Corps case of Sterling v. United States. The petition can be found here. The 4-1 decision of the U.S. Court of Appeals for the Armed Forces can be found here. The majority opinion by Judge Margaret A. Ryan states in part:

Appellant has failed to establish that the orders to remove the signs [she placed on her government computer] substantially burdened her religious beliefs. While Appellant seeks to cast the substantial burden as caused by the choice between obeying the orders to remove the signs and potentially facing a court-martial, this logic is flawed, as it presumes that taking down the signs constitutes a substantial burden — a burden imposing both secular and religious costs. This is the very legal question to be decided. We reject the argument that every interference with a religiously motivated act constitutes a substantial burden on the exercise of religion. See Kaemmerling, 553 F.3d at 679 (finding “as true the factual allegations that [the claimant’s] beliefs are sincere and of a religious nature — but not the legal conclusion, cast as a factual allegation, that [their] religious exercise is substantially burdened”).

In this case, Appellant did not present any testimony that the signs were important to her exercise of religion, or that removing the signs would either prevent her “‘from engaging in conduct [her] religion requires,’” Mahoney, 642 F.3d at 1121 (citation omitted), or cause her to “abandon[] one of the precepts of her religion,” Sherbert, 374 U.S. at 404. While Appellant testified that posting the signs was religiously motivated in part, she did not testify that she believed it is any tenet or practice of her faith to display signs at work. See Wilson v. James, 139 F. Supp. 3d 410, 424–25 (D.D.C. 2015). Nor does Appellant’s testimony indicate how complying with the order to remove the signs pressured her to either change or abandon her beliefs or forced her to act contrary to her religious beliefs. See Kaemmerling, 553 F.3d at 678–79; cf. Hankins, 441 F.3d at 104 (detailing the consequences of failing to assert or establish at trial that an action substantially burdens a religious exercise). Although Appellant did not have to provide evidence that posting signs in her shared workspace was central to her belief system, she did have to provide evidence indicating an honest belief that “the practice [was] important to [her] free exercise of religion.” See Sossamon, 560 F.3d at 332. Contrary to Appellant’s assertions before this Court, the trial evidence does not even begin to establish how the orders to take down the signs interfered with any precept of her religion let alone forced her to choose between a practice or principle important to her faith and disciplinary action.

“[C]ourts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.” See Cutter, 544 U.S.at 720. In evaluating whether taking down the signs constituted a substantial burden on her exercise of religion, we will not ignore two additional salient facts. First, Appellant never told the person who ordered her to take down the signs — which were not, like the wearing of a hijab, obviously religious to most, see E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2033 n.3 (2015) — that they even had a religious connotation, let alone that they were important to her religion. Requiring that minimal step before concluding that an order imposes a substantial burden is certainly not onerous or unreasonable in the military context where orders are presumed to be lawful, adherence to orders is integral to the military performing its mission, and the military force is made up of diverse individuals with diverse backgrounds — with no guarantee those charged with command have any special expertise in religion. Permitting, as the dissent proposes, military members to disobey orders now and explain why later (much later, as in mid-trial in the instant case) makes no sense. It is certain that “the military is, by necessity, a specialized society,” Parker v. Levy, 417 U.S. 733, 743 (1974), and “to accomplish its mission the military must foster instinctive obedience, unity, commitment, and esprit de corps,” Goldman v. Weinberger, 475 U.S. 503, 507 (1986). As we recently concluded:

“‘[T]he military must insist upon a respect for duty and a discipline without counterpart in civilian life. The laws and traditions governing that discipline have a long history [and] are founded on unique military exigencies as powerful now as in the past.’” United States v. Heyward, 22 M.J. 35, 37 (C.M.A. 1968) (quoting Schlesinger v. Councilman, 420 U.S. 738, 757 (1975)). Unlike his civilian counterparts, “‘it is [the servicemember’s] primary business ... to fight or be ready to fight wars should the occasion arise.’” [Levy, 417 U.S. at 744 (citation omitted)]. In order to achieve this objective, “[n]o question can be left open as to the right to command [by a superior], or the duty [to obey by a subordinate].” In re Grimley, 137 U.S. 147, 153 (1890); accord [Goldman, 475 U.S. at 507] (1986) (noting that “the military must foster instinctive obedience”).

United States v. Caldwell, 75 M.J. 276, 281–82 (C.A.A.F. 2016) (alterations in original).

Second, and relatedly, we will not overlook the reality that DoD and Naval regulations permitted Appellant to request an accommodation for any rule or regulation that she believed substantially burdened her religion, but required that she adhere to and follow orders while awaiting a determination on the matter. See DoDI 1300.17 para. 4(g); SECNAVINST 1730.8B CH-1 para. 5(a). Appellant is charged with knowledge of both general orders, and not only did she fail to inform her superiors about the religious sig- nificance of the signs from her perspective, she did not request an accommodation.

We recognize that RFRA [Religious Freedom Restoration Act] does not itself contain an exhaustion requirement and that at least one federal appellate court has held that an individual need not request an exemption to invoke RFRA, even if a system for doing so is in place. See Oklevueha Native Am. Church of Haw., Inc. v. Holder, 676 F.3d 829, 838 (9th Cir. 2012). But we agree with those courts that have held that an option to request an accommodation “may eliminate burdens on religious exercise or reduce those burdens to de minimis acts of administrative compliance that are not substantial for RFRA purposes.” Little Sisters of the Poor Home for the Aged, Denver, Colo. v. Burwell, 794 F.3d 1151, 1178 (10th Cir. 2015), vacated and remanded sub nom. Zubik v. Burwell, 136 S. Ct. 1557 (2016) (per curiam); Priests for Life v. U.S. Dep’t of Health and Human Serv., 772 F.3d 229, 249–52 (D.C. Cir. 2014), vacated and remanded sub nom. Zubik, 136 S. Ct. 1557.

Appellant could have requested an exemption from her chain of command to post the signs, and she could have appealed a denial of the request to the Commandant of the Marine Corps. See SECNAVINST 1730.8B CH-1 paras. 5.c, 5.d. The relevant instruction requires commanders to balance requests against considerations such as military readiness and unit cohesion, and commanders must reply to requests within one week. Id. at paras. 5, 5.c. If military necessity precludes honoring a request, commanders are required to “seek reasonable alternatives.” Id. at para. 11.d.

While Appellant’s failure to seek an exemption does not prevent her from invoking RFRA, the accommodation process is important for two reasons. First, the established and expeditious option to request an accommodation illustrates the importance that the military places both on respecting the religious beliefs of its members and avoiding substantial burdens on religion where possible. Second, by potentially delaying an accommodation for only a short period of time, the accommodation process interposes a de minimis ministerial act, reducing any substantial burden otherwise threatened by an order or regulation of general applicability, while permitting the military mission to continue in the interim. This consideration is crucial in the military context, as the very lifeblood of the military is the chain of command. United States v. Priest, 21 C.M.A. 564, 570, 45 C.M.R. 338, 344 (1972) (“The armed forces depend on a command structure that at times must commit men [and women] to combat, not only hazarding their lives but ultimately involving the security of the Nation itself.”); see also Caldwell, 75 M.J. at 282.

Because Appellant has not established a prima facie case, this Court need not evaluate whether the orders at issue in this case were the least restrictive means of furthering a compelling government interest.

Four votes are needed to grant certiorari. At present, the Supreme Court has eight members; the seat formerly held by the late Justice Antonin Scalia remains vacant due to Senate inaction on President Barack Obama's nomination of Chief Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit.