U.S. v. Sterling, 75 M.J. 407

Core Criminal Law Subjects: Crimes: Article 91 - Insubordinate Conduct Toward Warrant Officer, Noncommissioned Officer, or Petty Officer Pre-2019 offenses

1. a lawful order must relate to military duty, which includes all activities reasonably necessary to accomplish a military mission, or safeguard or promote the morale, discipline, and usefulness of members of a command and directly connected with the maintenance of good order in the service
2. the dictates of a person’s conscience, religion, or personal philosophy cannot justify or excuse the disobedience of an otherwise lawful order
3. an order is presumed to be lawful, and the accused bears the burden of rebutting the presumption
4. to be lawful, an order must (1) have a valid military purpose, and (2) be clear, specific, and narrowly drawn; in addition, the order must not conflict with the statutory or constitutional rights of the person receiving the order
5. a staff sergeant’s order that appellant remove signs posting the words “no weapon formed against me shall prosper” from her shared workspace served a valid military purpose by maintaining good order and discipline, and was thus lawful, where staff sergeant wished to keep the shared workspace clean and did not like the tone of the posted signs, which could have been interpreted as combative
6. while appellant’s posting of signs at her workspace, which stated that “no weapon formed against me shall prosper,” was claimed to be religiously motivated at least in part and thus fell within the RFRA’s expansive definition of “religious exercise,” appellant nonetheless failed to identify the sincerely held religious belief that made placing the signs important to her exercise of religion or how the removal of the signs substantially burdened her exercise of religion in some other way, and thus appellant was not entitled to the RFRA defense at her court-martial proceedings for violating the order to remove the signs

Core Criminal Law Subjects: Defenses: Generally

1. to establish a prima facie RFRA defense, an accused must show by a preponderance of the evidence that the government action (1) substantially burdens (2) a religious belief (3) that the defendant sincerely holds; if a claimant establishes a prima facie case, the burden shifts to the government to show that its actions were the least restrictive means of furthering a compelling governmental interest; in this case, because appellant failed to establish a prima facie case, the burden did not shift to the government in this case
2. to establish a prima facie RFRA defense, an accused must show by a preponderance of the evidence that the government action (1) substantially burdens (2) a religious belief (3) that the defendant sincerely holds; if a claimant establishes a prima facie case, the burden shifts to the government to show that its actions were the least restrictive means of furthering a compelling governmental interest; in this case, because appellant failed to establish a prima facie case, the burden did not shift to the government in this case
3. while religious conduct triggers a RFRA inquiry, RFRA only protects actions that are sincerely based on a religious belief; determining sincerity is a factual inquiry within the trial court’s authority and competence, and the claimant’s sincerity in espousing that practice is largely a matter of individual credibility
4. courts are highly deferential to claimants in evaluating sincerity, but may still conduct meaningful reviews of sincerity
5. in evaluating sincerity, a court may not question whether the petitioner correctly perceived the commands of her faith, nor does a court differentiate among bona fide faiths
6. within the meaning of the RFRA, a substantial burden exists where a government action places substantial pressure on an adherent to modify her behavior and to violate her religious beliefs
7. to determine whether a prima facie case has been established, courts do not question whether the petitioner correctly perceived the commands of her faith
8. while a court will not assess the importance of a religious practice to a practitioner’s exercise of religion or impose any type of centrality test, a claimant must at least demonstrate an honest belief that the practice is important to her free exercise of religion in order to show that a government action substantially burdens her religious exercise
9. a substantial burden is not measured only by the secular costs that government action imposes; the claimant must also establish that she believes there are religious costs as well, and this should be clear from the record
10. a burden is not substantial if it merely prevents the adherent from either enjoying some benefit that is not otherwise generally available or acting in a way that is not otherwise generally allowed; moreover, an inconsequential or de minimis burden on religious practice does not constitute a substantial burden, nor does a burden on activity unimportant to the adherent’s religious scheme
11. courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries
12. 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
13. while appellant’s posting of signs at her workspace, which stated that “no weapon formed against me shall prosper,” was claimed to be religiously motivated at least in part and thus fell within the RFRA’s expansive definition of “religious exercise,” appellant nonetheless failed to identify the sincerely held religious belief that made placing the signs important to her exercise of religion or how the removal of the signs substantially burdened her exercise of religion in some other way, and thus appellant was not entitled to the RFRA defense at her court-martial proceedings for violating the order to remove the signs

Core Criminal Law Subjects: Defenses: Obedience to Orders

1. while appellant’s posting of signs at her workspace, which stated that “no weapon formed against me shall prosper,” was claimed to be religiously motivated at least in part and thus fell within the RFRA’s expansive definition of “religious exercise,” appellant nonetheless failed to identify the sincerely held religious belief that made placing the signs important to her exercise of religion or how the removal of the signs substantially burdened her exercise of religion in some other way, and thus appellant was not entitled to the RFRA defense at her court-martial proceedings for violating the order to remove the signs

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. the CAAF defers to a military judge’s factual findings unless they are clearly erroneous or unsupported by the record; the same deference applies to a CCA’s factual findings

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. the legality of an order is a question of law that an appellate court reviews de novo
2. appellate review of the requirements of the RFRA, although largely factual in nature, presents mixed questions of fact and law; an appellate court reviews legal questions, including the application of RFRA, de novo; factual findings are reviewed for clear error

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: United States Code

1. the Religious Freedom Restoration Act, 42 USC 2000bb-1 (2012) (as amended), which, by its own terms, applies to every branch, department agency, instrumentality, and official (or other person acting under color of law) of the United States, 42 USC § 2000bb-2(1), also applies in the military context
2. the RFRA provides that the government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability; as amended by the Religious Land Use and Institutionalized Persons Act of 2000, the RFRA broadly defines the exercise of religion as any exercise of religion, whether or not compelled by, or central to, a system of religious belief; the RFRA applies to the military
3. an RFRA inquiry is triggered by a “religious exercise;” the CCA’s holding that RFRA’s definition of “religious exercise” requires the practice be part of a system of religious belief was too narrow; the RFRA defines “religious exercise” as any exercise of religion, whether or not compelled by, or central to, a system of religious belief; a “religious exercise” under the RFRA involves not only belief and profession but the performance of (or abstention from) physical acts that are engaged in for religious reasons
4. to establish a prima facie RFRA defense, an accused must show by a preponderance of the evidence that the government action (1) substantially burdens (2) a religious belief (3) that the defendant sincerely holds; if a claimant establishes a prima facie case, the burden shifts to the government to show that its actions were the least restrictive means of furthering a compelling governmental interest; in this case, because appellant failed to establish a prima facie case, the burden did not shift to the government in this case
5. while religious conduct triggers a RFRA inquiry, RFRA only protects actions that are sincerely based on a religious belief; determining sincerity is a factual inquiry within the trial court’s authority and competence, and the claimant’s sincerity in espousing that practice is largely a matter of individual credibility
6. within the meaning of the RFRA, a substantial burden exists where a government action places substantial pressure on an adherent to modify her behavior and to violate her religious beliefs

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: Regulations

1. at least two general orders prescribe the manner in which religious accommodations to rules of general applicability of the Religious Freedom Restoration Act (RFRA), 42 USC 2000bb-1 (2012) (as amended), should be processed and facilitated in the military: Dep’t of Defense Instr. 1300.17, Accommodation of Religious Practices Within the Military Services (Feb. 10, 2009, Incorporating Change 1, Jan. 22, 2014), and Dep’t of the Navy, Secretary of the Navy Instr. 1730.8B CH-1, Accommodation of Religious Practices (Mar. 28, 2012)