I would like to know whether her superior allowed or would have allowed other secular messages to be posted, like "Be a positive thinker!" or even "My daughter is the best!" Perhaps the burden should be on the military to show that other messages would have been treated the same. We are told only that "as far as the record shows," he would have. That's a bit ambiguous. Did the record show he would have?
The message was not, I think, overtly religious; how many list members would have thought, "Oh, that's from the Bible!" (It could have been from Dungeons and dragons, or a Lord of the Rings clone, or just vivid and creative language.) Nor was it exclusionary, so as to potentially disrupt the cohesion that might be important particularly in a military environment. Nor does it appear that the message was directed against others in the office that Sterling might have thought were against her. Even with its somewhat archaic language, I would think that the message was entirely appropriate for a military, much of whose purpose is to defeat or deter others in the use of weapons. If there might be a speech discrimination issue here -- with religious speech being favored under RFRA -- one solution would be to allow everyone to post a non-disruptive message at their desk. Mark Mark S. Scarberry Pepperdine University School of Law _____________________________ From: Marty Lederman <martin.leder...@law.georgetown.edu<mailto:martin.leder...@law.georgetown.edu>> Sent: Wednesday, April 26, 2017 4:37 PM Subject: Re: Re-upping: Sterling: A helpful test case on RFRA burdens To: Marty Lederman <lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>> Cc: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Here's the government's brief in opposition<http://www.scotusblog.com/wp-content/uploads/2017/04/16-814-BIO.pdf>. It stresses that RFRA's substantial burden test requires the claimant at a minimum to provide evidence of an honest belief that the practice in question--rather than available alternatives--wasimportant to her exercise of religion (something utterly lacking here--see my description below). The SG does not mention, in addition, that even if there were a substantial burden here, RFRA would not require a religious exemption because the government has a compelling interest in not violating the Free Speech Clause. On Mon, Feb 20, 2017 at 3:05 PM, Marty Lederman <martin.leder...@law.georgetown.edu<mailto:martin.leder...@law.georgetown.edu>> wrote: Now that Paul Clement has filed a cert. petition<http://www.scotusblog.com/wp-content/uploads/2017/01/16-814-cert-petition.pdf> in this case, I thought I might revive the thread, which didn't inspire any reactions last time around! Perhaps I'm alone, but it strikes me that the case raises a very interesting and important question about how to assess whether a burden on religious exercise is "substantial" for RFRA purposes. To recap the very straightforward facts: 1. Marine Corps Lance Corporal Monfia Sterling posted three identical signs in her workspace, each containing only the words “No weapon formed against me shall prosper”--two of them in large (28-point) font. The statement derives from Isaiah 54:17. She posted one sign on the side of her computer tower, one above her computer screen, and one above her desk mailbox. The signs were large enough for those walking by her desk, and Marines seated at her workspace, to read. 2. Her superior officer insisted that she take the signs down; indeed, that officer threw her signs in the trash, and she continued to repost them. Therefore Sterling was court-martialed for insubordination, and sentenced to a bad-conduct discharge and a reduction in pay grade--no small thing in terms of sanctions. As far as the record shows, her superior officer was not motivated by the fact that the signs were, or Sterling was, religious--he would have done the same no matter what the employee's motivation was, and no matter whether the signs were scriptural. 3. Sterling testified that the signs had religious significance to her, and that she posted them in response to difficulties she was experiencing at work. They were, she testified,a "mental reminder” to her and that she didnot intend to “send a message to anyone” else. Paul's petition asserts, without citation to the record, that "[t]he conduct at issue was an undisputed exercise of religion by LCpl Sterling to beseech a higher power for spiritual strength and fortitude in the face of challenges." Although there's no evidence that Sterling intended any "beseeching," I think it's fair to say that she did intend to invoke the words of a higher power "for spiritual strength and fortitude in the face of challenges." Sterling did not testify, or otherwise claim, however, that her religion mandated that she post the signs, or that it was a common practice or tenet of her religion. More to the point, she apparently did not testify aboutwhether or why posting the signs was important to her, or a significant part of her religious exercise. She did not, for example, explain why it would not have been just as effective for her to post the signs in smaller font that others would not notice, or to use other means of "mentally reminding" herself. The Court of Appeals for the Armed Forces held that Sterling had failed to meet her RFRA burden because she did not establish either the "subjective importance of the conduct" to her religious exercise, or that such posting was a “tenet” or "precept” of her faith. My question: Can it really be the case that Sterling has established a "substantial burden" on her religious exercise, without any evidence at all of how or why the posting of the bible verse at her desk, in a font big enough for bystanders to see, was at all important to her religious commitments or exercise? According to Paul Clement's petition, an inquiry into the "subjective importance" of the practice to the plaintiff is not only unnecessary under RFRA, but constitutionally prohibited--it "took the CAAF to a place no secular court is equipped or authorized to go." "[A]ny sensible interpretation of the Religion Clauses must forswear a judicial inquiry into the 'subjective importance' of a religious practice." I'm genuinely curious: What do others think of this argument? Does (must?) RFRA truly treat any and all religiously motivated activity the same, regardless of how significant it is to the adherent's beliefs and practices? On Thu, Aug 11, 2016 at 12:29 PM, Marty Lederman <lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>> wrote: For purposes of a project I'm currently working on, I'm genuinely curious whether any readers on the list think that there was a substantial burden here. Paul Clement argued on behalf of the plaintiff's cause, and there were a slew of amicus briefs, so I assume there's a serious dispute out there. I'd like to understand it better, and to be able to put the burden question in the best possible light. (Please note that I am putting aside the question of whether the Air Force would still win on the back end of RFRA, which it likely would, if for no other reason than that offering a preference for religious workplace speech would violate the Free Speech Clause. I am only interested for now in the burden question.) Assuming the following facts, as the court did: 1. Lance Corporal Sterling posted three identical signs in her workspace, each containing only the words “No weapon formed against me shall prosper,” on 8 1/2- x 11-inch paper in 28-point font or smaller. One was on the side of her computer tower, one above her computer screen, and one above her desk mailbox. The signs were large enough for those walking by her desk, and Marines seated at her workspace, to read. 2. Her superiors insisted that she take the signs down, on penalty of court-martial for insubordination (a pretty big deal in terms of sanction, as, presumably, would be her leaving the service). They were not motivated by the fact that the signs, or Sterling, was religious--they would have done the same no matter what the employees' motivation was. 3. Her posting of the signs was (let’s assume--as the court did) sincerely motivated by Sterling's religious beliefs, and the signs had religious significance to her. Yet she did not make any claim that posting them was religiously mandated, or that it was a tenet (central or otherwise) of her religion to do so. Has she met her burden of demonstrating a substantial burden on her religious exercise? If so, and if we can imagine there are other officers in her workplace who would be similarly (and just as intensely) motivated to post signs at their stations for nonreligious reasons, why should we assume Congress would want to provide rights to Sterling (even the right to put the government to its RFRA burden) that it is unwilling to give her similarly situated, secularly motivated colleagues? Thanks in advance for any responses. On Thu, Aug 11, 2016 at 9:52 AM, Friedman, Howard M. <howard.fried...@utoledo.edu<mailto:howard.fried...@utoledo.edu>> wrote: The Armed Forces Court of Appeals handed down an interesting RFRA decision yesterday-- with an extensive discussion of the "substantial burden" prong as well as some other unique issues: http://religionclause.blogspot.com/2016/08/armed-forces-court-of-appeals.html Howard Friedman _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Marty Lederman Georgetown University Law Center 600 New Jersey Avenue, NW Washington, DC 20001 202-662-9937
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
