The case of former US Marine LCpl Monifa Sterling, who made national news when her court-martial included charges related to posting a Bible verse on her desk, has been appealed to the US Supreme Court.

Sterling was a substandard Marine, but the straw that broke the camel’s back to get her court-martialed was posting, “No weapon formed against me shall prosper,” a paraphrase of Isaiah 54:17…

Religious liberty lawyers at First Liberty Institute agreed that Sterling’s posting Bible verses is protected by law…[and] recruit[ed] one of the greatest Supreme Court litigators in recent decades, former Solicitor General Paul Clement, to lead their team…

Sterling’s case has become a fascinating discriminator for determining which organizations value religious freedom for all — and which value it only when it is either convenient to or aligned with their cause.

For example, Chris Rodda (Michael “Mikey” Weinstein’s MRFF research assistant), essentially made the case that Sterling was a bad Marine, and so it didn’t really matter that this was one of the charges over which she was court-martialed. Weinstein himself said Sterling was a

literal Poster Child as to precisely what a Bad Conduct Dischargee does to richly deserve the ignominious disgrace of receiving that Bad Conduct Discharge.

As with Rodda, Weinstein appears to be making the case that because Sterling was a “bad Marine,” any infringement on her rights was incidental and unworthy of discussion — much less protection. (The semantically-challenged Weinstein apparently needs to look up the word “literal.”)

Weinstein’s lawyer, Donald Rehkopf, presented an even more ridiculous argument:

1. Sterling was not court-martialed for posting the signs, but for disobeying the order to remove them
2. Since no religious tenet requires disobeying an order, her religious freedom was not burdened

Contrast the MRFF’s aggressive attempts to undermine Sterling’s case with those who are defending her. Notably, the Breitbart article begins by describing Sterling as a “substandard Marine” — no words are minced in attempting to paint a halo on what was apparently a less-than-noble period of service. Notice, too, that Sterling’s lawyers aren’t appealing any other charges for which she was convicted. It is entirely possible — and even likely — that Sterling could win this case at SCOTUS and still have a BCD with the Marines.  (That said, a Bad Conduct Discharge is a pretty severe result, given that BCDs are normally associated with jail time, and you can do far worse than she and still receive higher-grade discharges.)

But none of that eliminates her rights as an American citizen protected under the US Constitution, and as further protected by the Religious Freedom Restoration Act.

That’s actually where this appeal lies. The RFRA says to force the government to justify its infringement on religious liberty, a person must establish that a “substantial burden” has been placed on their religious exercise. The basic question presented to the Supreme Court is where the line for substantial burden is. Thus, from the appeal, which of these two is correct?

1. A substantial burden exists only when the government forces adherents to engage in conduct that their religion forbids or refrain from conduct that their religion requires.
2. A substantial burden exists whenever the government directly restrains religious exercise, even when that religious exercise in not compelled such that the adherent faces a dilemma.

Sterling did not claim she was under religious obligation to post Bible verses on her desk, so she was not forced to choose between obeying God or obeying man. Thus, if the former is the RFRA legal standard, the government has not “substantially burdened” her religious exercise — and she and anyone like her lose when they post Bible verses on their desks.

But if the latter is the legal standard, her religious exercise has been substantially burdened — and the government must now justify its conduct, rather than she having to justify hers. She and others like her might still lose — but the government is forced to articulate a justification for its infringement on their rights. Knowing the legal implications, no JAG would recommend a commander take such action unless they could create a defensible legal position. The onus, then, shifts to the government, and the Citizen is presumed to have his rights.

Note that none of that has to do with how bad Sterling’s performance reviews were or whether she was guilty of any other conduct that warranted a discharge. The case rests on the meaning of “substantial burden” with the RFRA — and for that reason, it is potentially a substantial precedent setting case.

In fact, Mikey Weinstein’s MRFF has already tried to use Sterling’s case to support restricting religious liberties of other US troops.

To be clear, the conclusion of Sterling’s appeal to the Supreme Court is far from foregone. For example, the Court could decide, irrespective of the facts, to “defer” to the military, as it has in some cases in the past. The Court could find that enough people were innocently ignorant of the religious implications (because Sterling allegedly did not tell anyone) that there is no cause. Or, the court could simply decide this is not a “good enough” case with which to establish a precedent on RFRA. And it could make any or all of those decisions without anyone knowing, simply by denying the appeal.

Still, the root of the issue is religious liberty. Ignore, for a moment, the fact that Sterling is even in the case. If religious freedom is the First Liberty — a liberty “endowed by [our] Creator,” not the government — which of those two definitions of “substantial burden” should prevail?

Clearly, it is the second, which means a great many civil rights groups (even those who normally oppose each other) should support Sterling’s appeal — even if they don’t support Sterling herself.

Unfortunately, there are still a great many people who think religion should stay within the four walls of the church, and that if it ever comes out, it is to be allowed to be practiced only in the most restricted manner possible.

Does your religion prohibit you from baking a cake with a homosexual message on it…? But that’s a different topic.

Or is it?

Also at IJR, the Daily Caller, Christian Times, Stars and Stripes, Military.com, and the Religion Clause.

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