US Air Force TSgt Layne Wilson, a Mormon member of the Utah Air National Guard, sued the US Air Force after he was disciplined for expressing opposition to same-sex marriage two years ago. The lawsuit was dismissed earlier this month at the DC District Court.

The ruling (PDF) is an interesting read that at times seems obvious, at others contradictory, and in the end rather confusing. This much appears to be undisputed:

On December 2, 2012, Plaintiff Layne Wilson…sent an email, using his military email account, to an official at the United States Military Academy at West Point objecting to a same-sex wedding held at the military academy’s chapel…

As a result: 

[LtCol] Kevin Tobias…disciplined [Wilson] for [the email] — first, rescinding his six-year reenlistment contract and offering in its place a one-year contract that Plaintiff later signed; and second, issuing [Wilson] a Letter of Reprimand.

This is apparently when LtCol Tobias made the now-famous (and incorrect) statement that Airmen had been ordered “not to have an opinion” on DADT — and that Wilson had violated that “order.”

THE LAWSUIT

Ultimately, Wilson sued over the punishments under the Religious Freedom Restoration Act, the First and Fifth Amendments, the Administrative Procedure Act, and the Privacy Act.

Notably, the ruling belittles the entire lawsuit, calling it “abstruse” and “inartful.”

ENLISTMENT CONTRACT

The court dismissed all claims over the enlistment contract as moot, since his commander acknowledged it had been wrong to terminate the contract and it had been reinstated (notably, after the lawsuit was filed).

RELIGIOUS FREEDOM RESTORATION ACT

The court dismissed claims about violation of the RFRA because it says Wilson did not specify an “action or practice” that was burdened by LtCol Tobias’ LORs. At the same time, the ruling seems to acknowledge what Wilson was claiming [emphasis added]:

Admittedly, the First LOR likely chilled Plaintiff’s speech regarding his religious beliefs, especially within the military setting. But nowhere does Plaintiff assert that LDS doctrine requires him to publicly voice his dissent about homosexuality or same-sex marriage…

Even if Plaintiff’s speech about same-sex marriage could be considered a religious exercise under RFRA, the First LOR did not “substantially burden” it.

This is an interesting act of linguistic acrobatics, as the court essentially says speech that expresses religious beliefs is not “action or practice” and is therefore unprotected, and even if it was “action or practice,” it was “chilled” but not “burdened.”

Further, the court took a naïve view of what the LOR actually did:

The First LOR punished Plaintiff for voicing his views about same-sex marriage, using his military email account, to a senior officer outside his chain of command. That is all.

The problem with that summary is that no military regulation, law, or policy prohibits military members from voicing their views, using government email, to a senior officer. In other words, the court deferred to the Air Force in its ability to punish Wilson for something that was not punishable. That’s the equivalent of a court upholding a speeding ticket given at a speed below the speed limit.

FIRST AMENDMENT CLAIMS

The court dismissed the First Amendment claim regarding the email as “free speech” almost exclusively because of the reaction to it by Air Force General officers, rather than the content of the email itself. The court characterized the email as

An email from an enlisted member of the military that protests the decision of a senior military official outside the sender’s chain of command and urges that official to reverse his decision receives no First Amendment protection.

…except that wasn’t what actually occurred. A plain reading of the email reveals no protest of a senior military official’s decision, nor does it urge anyone to reverse any decision. The content of the email is not unexpected for correspondence intended for a chaplain, as the email was. That other officers perceived it differently does not change the character of what actually occurred.

INTERNAL REMEDIES and LORs

The rest of Wilson’s claims were dismissed largely for administrative reasons, including the fact he failed to exhaust all internal remedies before bring the lawsuit. Notably, the court also said

Granting the relief Plaintiff seeks — removal of the LORs from his official record — would require this court to second-guess the wisdom of a military decision to reprimand Plaintiff. The court is ill-equipped to make such a judgment.

Presumably, this statement was made under the context of exhausting internal remedies, and the court would not make such a blanket statement in other cases. If it is a categorical statement, it lends credence to accusations that LORs and other forms of administrative “punishment” are a convenient — and now judicially bulletproof — way to sanction military members who haven’t actually done anything wrong.

CONCLUSION

TSgt Wilson’s long journey began when he wrote an email to a chaplain. There was nothing remarkable nor actionable in the email he wrote, and his correspondence was consistent with that which might occur among servicemembers and chaplains. That the email was later placed in the hands of others, including General officers to whom it was not addressed, and that some drew incorrect conclusions about to whom it was addressed, does not change the permissible nature of Wilson’s (initial) conduct.

In the end, the LOR stood not because the court chose to support it, but because it deferred to the military and simply chose not to question it — despite the clear issues of religion, the Constitution, and the governmental restriction of liberty.

The controversy between LtCol Tobias and TSgt Wilson was one of the most clear presentations of the conflict in the military between religious expression and the military’s acceptance of open service by homosexuals. An Air Force member’s permissible conduct was punished based on the religious content of his expression — despite the fact no harm was done, and no rules or regulations restricted that conduct.

Some might say the punishment of TSgt Layne Wilson for his religious expression seems to support some claims that society — and ultimately the military — will require support and even affirmation for “erotic liberty,” even at the cost of religious liberty.

It seems unlikely this controversy will soon end.

Via the Religion Clause.

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