By Rene Sotolongo:
In case you haven’t heard, the Supreme Court of the United States is being asked to hear the case of Marine Lance Corporal Monifa Sterling. Monifa Sterling is the United States Marine who refused a direct order from a superior officer to remove a personalized printed Bible verse from her work area in Camp Lejeune.
So what is all the press about? Why is this seemingly simple, cut-and-dry case being requested to be reviewed by the Supreme Court? Because it involves religious freedom, the right to free speech, and the United States military. In short, this case could have a profound impact on religious liberties for our service members in the armed forces.
As a devout Christian, one of LCpl Sterling’s favorite Bible verses is “No weapon formed against you shall prosper” (Isaiah 54:17). In May 2013, she printed “multiple” personalized version of the scripture and taped it up in three places in her workspace—most prominently along the top of her computer monitor.
When Sterling’s supervisor, who also happened to be Sterling’s former drill instructor, saw the verse, she ordered Sterling to remove it. Sterling noted that other service members had personal items in their workspaces and asked why she couldn’t post the Bible verse.
The supervisor said, “I don’t like the tone.”
Sterling said she believed it was her First Amendment right to post Bible verses and declined to take them down. The next morning, Sterling found that the verses had been torn down and thrown in the trash.
Rather than complaining, she simply reprinted the verses and put them back up. The morning after that, she found the verses in the trash again. Soon after, Sterling was court-martialed.
In 2014, Sterling was convicted at a court martial for refusing to take down a Bible verse she had posted in her workspace AND for reposting the verses after her supervisor threw them in the trash.
At the trial, Sterling represented herself and invoked her First Amendment rights to religious expression, as well as the Religious Freedom Restoration Act (RFRA) to defend her posting of the verses, especially since no one in the unit ever complained.
The judge ruled against her. Sterling was convicted, given a bad conduct discharge, and reduced to the military’s lowest rank.
At this point, First Liberty Institute (a conservative Christian advocacy group and legal defense organization founded in 1972) stepped in and appealed Sterling’s case to the Court of Appeals for the Armed Forces (CAAF), the highest military court.
On August 10, 2016, the CAAF ruled against Sterling. It is now the position of many, including her defense team, that in its ruling, the CAAF denied Sterling her constitutional right to religious freedom.
“The CAAF’s decision is absolutely outrageous,” Kelly Shackelford, president and CEO of First Liberty Institute, says. “A few judges decided they could strip a Marine of her constitutional rights just because they didn’t think her beliefs were important enough to be protected. If they can court-martial a Marine over a Bible verse, what’s to stop them from punishing service members for reading the Bible, talking about their faith, or praying?”
“This is shameful, it’s wrong, and it sets a terrible precedent, jeopardizing the constitutional rights of every single man and woman in military service,” Shackelford continued. “This cannot be allowed to stand.”
First Liberty appealed the case to the U.S. Supreme Court on December 23, 2016.
According to the Independent Journal Review, Sterling’s attorneys believe the appeals court ruling will lead to suppressed religious freedom in the military if allowed to stand.
But here is what is NOT being reported, and it is why I agree with the appeals court.
You see, the only charges making the press are in regards to her religious liberties and the Bible verse. However, according to several sources and the official military record, this WAS NOT the only disciplinary matter Sterling was charged with.
You have to understand. This is the military, and ALL military members are subject to the Uniform Code of Military Justice (UCMJ). Please note that the Marine Corps falls under the Department of the Navy. So let me (as a United States Navy Chief) break this down for you in substance and procedure.
First, in regards to the substance of the case, you have to understand the UCMJ and the various rules and regulations that are in place to preserve good order, morale, and discipline.
Sterling was working on a military base using government property. This is a critical distinction that must be made. You, as a service member, DO NOT have the right (or religious freedom) to permanently affix, post, fasten, or attach anything to government property without permission. It is not your private property.
So let’s understand the distinction here. Bringing a Bible to work and placing it on your desk? Acceptable. You are not permanently affixing or fastening your Bible to government property, and it is probably something you take with you at the end of the day.
However, placing stickers, bumper stickers, posters, or Bible verses on government property is NOT acceptable without permission. You have permanently placed private property on government property. These items are not likely to be taken down or removed at the end of the work day. They stay up and thus are considered permanently affixed. As such, you need your Chain of Command’s permission.
See the difference?
If she is allowed to put up a Bible verse without permission, then what’s to keep sailors, soldiers, airmen, and/or marines from putting up a calendar with nude women? Or placing an offensive bumper sticker on a Humvee? Or flying a confederate flag? Can you see the slippery slope here?
One of her defenses was that other members in her work area were able to decorate their workspace. Ok, granted. But were those service members specifically ever ordered to take something down? I go back to my above illustration. If I were to put up a Sports Illustrated swimsuit model calendar, I am willing to bet I would be told to take it down. At that point it’s an order, and I must comply.
I know I am splitting hairs here, but when it comes to the military, these actions have to be viewed in this light. You have to play the devil’s advocate in order to maintain good order, morale, and discipline.
Consider that there was nothing stopping her from bringing her Bible to work and placing the Bible on her desk and opened to her favorite passage (Isaiah 54:17). Heck, she could have even highlighted the verse if she wanted to. Had she been ordered to remove the Bible, then she most definitely would have a case in regards to her religious freedom. But NOT when you permanently affix something to government property.
It’s akin to someone showing up at your house and putting up a KKK flag without your permission. It’s your property, and if you ask them to take it down, they have to. This is ignoring the fact that they should have asked your permission to begin with.
Then there is the issue of the Chain of Command. She had one. She did not use it.
It’s simple. If you feel that your immediate supervisor, or even your commanding officer, is in the wrong, you go up the Chain of Command. You do not take matters into your own hand and disobey orders—PERIOD.
Every base and command has an Equal Opportunity Office. Equal opportunity is a fundamental element of the Navy’s core values of honor, courage, and commitment. And I quote:
The Navy Regulations regarding Equal Opportunity (Article 1164) read:
Equal Opportunity shall be afforded to all on the basis of individual efforts, performance, conduct, diligence, potential, capabilities and talents without discrimination of race, sex, religion, color, or national origin. Naval personnel shall demonstrate a strong commitment to stand on these principles and carry them out. (emphasis added)
EO empowers Sailors to respond appropriately, even when faced with increasingly difficult choices. EO promotes and develops unit cohesion and partnerships up, down, and across organizational lines in order to meet the challenges of today and the future. EO recognizes the whole Sailor and the responsibility that the chain of command has to care for them.
Again, I stress, the Marine Corps falls under the Department of the Navy. If she had a problem with her supervisor telling her to take the Bible verses down, Sterling could have gone to the EEO office. She could have gone to the Sergeant Major. Heck, she could have even gone to the Chaplain, or as a last resort, Sterling could have filed a request (Request Mast) to talk to the Commanding Officer. And I quote:
The right of all Marines to directly seek assistance from, or communicate grievances to their commanding officers is established in Articles 0820c and 1151.1 of reference (b) and paragraph 2805 of reference (c), and is exercised through the formal process of Request Mast. (emphasis added)
Instead, she took it upon herself to disobey a direct order. In any branch of service, disobeying orders has ramifications. Sterling disobeyed orders. Repeatedly. You simply can’t do that in the military and expect not to be disciplined.
But wait, there’s more.
According to the preliminary hearing (Article 32 investigation), she refused to go to her appointed place of duty after claiming that her migraine medication prevented her from doing her job because “it made her drowsy.”
In its decision, the court found that there was nothing to prevent her from doing her job properly because she was supposed to take the assigned medication at night—not during working hours. Her argument? She didn’t want to take the meds at night. In other words, her defense was that she didn’t want to follow orders and refused to take the medication as prescribed.
Further, just a few days prior to this incident, she refused to take the special pass cards that she needed for the aforementioned job. She just flat-out refused to take them from the Major (her superior officer), who was trying to give them to her so that she could perform her duties.
A First Sgt. saw the incident and later testified to the court that it was “the most disrespectful thing [he] had witnessed from a Marine of junior rank to a commissioned officer in his over eighteen years of service.”
And finally, as a procedural matter, you simply cannot raise an issue on appeal that you did not argue at trial. It does not work that way. Appeals are reserved not to determine guilt or innocence, but to decide whether or not a trial court erred in its procedures. You cannot raise a new defense at appeal, which is what appears to be happening in this case.
Bottom Line: Sterling should have used all of the tools at her disposal and used her Chain of Command instead of disobeying it. Sterling disobeyed orders repeatedly (four counts of disobeying the lawful order of a noncommissioned officer), she showed up for duty out of uniform on more than one occasion, she failed to go to her appointed place of duty, and she disrespected a superior commissioned officer. All of these are direct violations of the UCMJ.
In short, you could make the argument that when viewed in context, Sterling is simply using the “religion” card to cover up a multitude of sins. Sterling brought discredit to herself, her fellow Marines, and the Corps. She deserves neither sympathy nor pardon.
Rene C. Sotolongo is an OpsLens Contributor and a retired U.S. Navy Chief Petty Officer who served for over twenty years as an Information Systems official. Sotolongo also specialized in homeland security and counterterrorism.