Kelly Shackelford of the First Liberty Institute wrote at the National Review that the US Supreme Court needs to review the case of court-martialed former US Marine Monifa Sterling:

Americans serving in the military lost some of their rights earlier this month when the military’s highest court ruled that a Marine has no rights under an important religious freedom law, the Religious Freedom Restoration Act (RFRA).

Shackelford explained where he believed the appeals court improperly diverged from the appropriate application of the Religious Freedom Restoration Act: 

Yet in a stunning decision, the military court ruled 4–1 that RFRA did not protect Sterling’s religious expression, splitting with other federal appeals courts on two critical points of law.

First, the court held that a religious burden is “substantial” only if it concerns something important to that person’s faith. That’s wrong…

Second, the court noted that military service members can ask for accommodations from their chain of command, and said that Sterling must do so before claiming any rights under RFRA.

But RFRA does not include any requirement that a person must navigate bureaucratic mazes before getting legal protection.

In the article, Shackelford again notes the judges seemed to take a jaundiced view of Sterling because her performance was documented as poor. Yet, as noted here previously, rights are not protected only for the ideal Marine.

Michael “Mikey” Weinstein and his group have already tried to use Sterling’s case to demand the US military restrict another Airman’s religious exercise: the presence of his personal Bible on his office desk. While it wasn’t remotely related, Weinstein will continue to beat that drum as if it is, just like he continues to say Air Force rules in AFI 1-1 similarly restrict religious liberty, despite the Air Force’s own statement’s to the contrary (statements of their interpretations of the rules they wrote).

There is little doubt Sterling will remain a relatively disgraced former Marine, as her Bad Conduct Discharge will follow her wherever she goes. But the separate issue of religious exercise potentially affects not just Sterling, but every other member of the US military — and not just Christians.

The Courts, including the US Supreme Court, have long shown great deference to the US military. But Congress wrote the RFRA for the government — and did not scope it to leave the military, which is part of the government, to its own devices.

Shackelford is right: The Supreme Court does need to address this issue. Can the US Congress — which alone has the constitutional power to raise an Army — write a religious liberty law that the US military can choose to alter, ignore, or enforce as it sees fit?

ADVERTISEMENT