A Marine lance corporal who was given a bad conduct discharge in 2014 for offenses including refusal to remove printed Bible passages from her work station is now petitioning the Supreme Court to review her case, arguing she wasn't given appropriate protection under religious freedom laws.
On Dec. 23, the Texas-based First Liberty Institute filed a petition for a writ of certiorari on behalf of Lance Cpl. Monifa Sterling, a key step in pursuing Supreme Court review of the case. Mike Berry, director of military affairs for the institute, told Military.com they hope the highest court in the land will make a decision as to whether to take the case sometime early next year.
Since her court-martial, Sterling has become a controversial figure. She has been hailed by some as a champion for religious liberty and dismissed by others as a Marine who displayed a pattern of insubordination and deserved her punishment.
According to a 2015 decision by the Navy-Marine Corps Court of Criminal Appeals [NMCCA] upholding her conviction, Sterling, an administrator, was taken to court after a series of run-ins with authority over a series of months, including refusal to wear the uniform of the day because it interfered with her back brace and declining to help distribute vehicle passes to family members when ordered to do so by a senior enlisted Marine and an officer.
At issue for the religious liberty groups who support her, however, is an incident in which she was ordered by her supervisor to remove three paper strips taped to her computer and elsewhere on her desk containing a personalized version of Isaiah 54:17: "No weapon formed against me shall prosper."
In May 2013, the supervisor, a staff sergeant, told her to remove the verses because she "didn't like their tone," according to the petition. When Sterling refused, the staff sergeant removed them herself. And when Sterling re-posted them above her desk, the staff sergeant again removed them.
To date, both NMCCA and the highest military appeals court, the Court of Appeals for the Armed Forces [CAAF] have upheld Sterling's conviction. But First Liberty Instituted contends that CAAF ruled incorrectly by finding religious protections only apply to behavior compelled by religious beliefs, such as abstaining from certain foods and wearing special headwear, and not to behavior motivated by religious beliefs, as Sterling's posting of the verses was.
Circuit appeals courts have so far been split on this issue, Berry told Military.com, but CAAF went with the minority, which defined religious protections more narrowly.
Having the Supreme Court take the case "would send a clear message that religious liberty in the military is protected by federal law," Berry said. "Secondly and relatedly, this would give the Supreme Court the opportunity to clarify a deep circuit split."
The law in question, the Religious Freedom Restoration Act, or RFRA, is designed to apply to military members as well as civilians. While it doesn't guarantee a favorable outcome for the individual practicing their religion, it should grant a careful review to make sure the religious person was not substantially burdened without a compelling reason, Berry said.
According to the petition, the ambiguities in the case make it a strong candidate for Supreme Court review.
"Federal courts have no tools to discern the 'subjective importance' of a practice or whether a practice is religiously compelled, as opposed to just religiously-motivated," the plaintiffs write in the petition. "Are Christians 'compelled' to read the Bible, or is reading the Bible merely 'motivated' by faith? … Indeed, the whole notion of having clear prohibitions, precepts, and tenets, is itself a religious judgment on which different religions have different perspectives."
For Sterling, the prospect of the highest court taking the case leaves open a wide range of outcomes. The Supreme Court could uphold the original conviction, it could order new action to be taken, or it could send the case back to a lower court with instructions to incorporate additional considerations. A favorable decision for Sterling could result in an upgraded discharge or even a new trial, with the possibility of re-entering the Marine Corps.
"Lance Cpl. Sterling was never given the benefit of RFRA protection," Berry said.