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Sterling Amicus USCA Dkt. No. 15-0510

Sterling Amicus USCA Dkt. No. 15-0510

        
            IN THE UNITED STATES COURT OF APPEALS
                    FOR THE ARMED FORCES
UNITED STATES                 )
                              )    Brief of Missouri Liberty
Appellee,
     Project, Missouri Forward
     Foundation, and Veterans in
     Defense of Liberty
) As Amici Curiae in
                              )    Support Of Appellant
          v.                  )
)
Monifa J. STERLING
Lance Corporal (E-3)          )
U.S. Marine Corps,
Appellant, )
TO THE HONORABLE JUDGES FOR THE
FOR THE ARMED FORCES:
)    Crim. App. Dkt. No. 201400150
)    USCA Dkt. No. 15-0510/MC
)
UNITED STATESCOURT OF APPEALS
Erin Morrow Hawley
Pro Hac Vice
Angela Kennedy
Brian McGarry
Kristen Stallion
University of Missouri
School of Law
203 Hulston Hall
Columbia, MO 65201
(573)823-1256
hawleye@missouri.edu
 TABLE OF CONTENTS
TABLE OF AUTHORITIES.................................................................................................ii INTEREST OF THE AMICI CURIAE..............................................................................iv SUMMARY OF THE ARGUMENT..........................................................................................1 ARGUMENT............................................................................................................................ 3
I. Sterling’s Religious Exercise Was Substantially Burdened.........3 A. The Broad Protections of RFRA .........................................................................3
B. The Federal Courts Have Broadly Defined Substantial
Burden To Include Government Action That Pressures or Coerces Religious Adherents........................................................................................................5 C. LCpl Sterling’s Religious Exercise Was Substantially
Burdened ..............................................................................................................................10
CONCLUSION ..................................................................................................................... 13 CERTIFICATE OF COMPLIANCE.................................................................................... 14 CERTIFICATE OF SERVICE..........................................................................................15
                        TABLE OF AUTHORITIES
Cases                                                     Page(s)
Burwell v. Hobby Lobby Stores, Inc.,
134 S.Ct. 2751 (2014).............................. 1, 2, 8, 11
Davila v. Gladden,
777 F.3d 1198 (11th Cir. 2015)............................... 8
Employment Division, Department of Human Resources of Oregon v. Smith,
494 U.S. 872 (1990).......................................... 3
Geneva College v. Secretary U.S. Dep’t of Health and Human Services,
778 F.3d 422 (3d Cir. 2015).................................. 8
Grayson v. Schuler,
666 F.3d 450 (7th Cir. 2012)................................. 8
Jones v. Williams,
791 F.3d 1023 (9th Cir. 2015)................................ 7
Korte v. Sebelius,
735 F.3d 654 (7th Cir. 2013)............................. 8, 11
Lyng v. Northwest Indian Cemetery Protective Assoc.,
485 U.S. 439 (1988)....................................... 8, 9
Midrash Sephardi, Inc. v. Town of Surfside,
366 F.2d 1214 (11th Cir. 2004)........................... 7, 12
Navajo Nation v. U.S. Forest Serv.,
535 F. 3d 1058 (9th Cir. 2008)............................... 4
Sherbert v. Verner,
374 U.S. 398 (1963).................................... 1, 3, 5
Thomas v. Review Bd. of Indiana Emp’t Sec. Div.,
450 U.S. 707 (1981)................................ 4, 6, 9, 12
United States v. Sec’y, Florida Dep't of Corr.,
2015 WL 197779 (S.D. Fla. Apr. 30, 2015)................. 9, 11
ii
 Wisconsin v. Yoder,
406 U.S. 205 (1972)..................................... passim
Statutes
42 U.S.C. § 2000bb.......................................... 2, 3 42 U.S.C. § 2000cc............................................. 4
iii
 INTEREST OF THE AMICI CURIAE
Veterans in Defense of Liberty (“ViDoL”) is dedicated to
promoting conservatism in the tradition of the Founding. The
organization is composed primarily of veterans who have served
in the armed forces.  Through political action and education,
ViDol protects the interests of these former military men and
women.
     Missouri Liberty Project and Missouri Forward Foundation
are nonprofit organizations dedicated to promoting
constitutional liberty and limited government.  As part of their
mission, the Project and Foundation seek to give everyday
Americans a meaningful voice in government.
As organizations that promote founding principles and constitutional freedoms, the amici have an important interest in seeing that our servicemen and women are provided the same broad religious liberty protections that otherwise exists under federal law. The amici urge this Court to overturn the lower court’s reading of RFRA to provide less to our country’s armed service members.
iv
                      SUMMARY OF THE ARGUMENT
The lower court’s decision in this case creates a world of religious (non-)liberty for the military alone. It eviscerates the broad religious protections provided by federal law by impermissibly narrowing the statutory term “exercise of religion.” In particular, the lower court’s requirement that LCpl Sterling demonstrate that her religion observance was “part of a system of religious belief” runs afoul of well-established Supreme Court precedent and is out of step with the decisions of the other federal courts of appeals. This is especially important because, as this brief argues, the burden on LCpl Sterling’s religious exercise was substantial.
As the Supreme Court recently held, RFRA provides “very broad protection” for religious liberty. Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751, 2756 (2014). As part of this “broad protection,” Congress saw fit to adopt an expansive understanding of substantial burden. Indeed, Congress enacted RFRA specifically to restore the substantial burden test stated by the Supreme Court of the United States in Sherbert v. Verner, 374 U.S. 398 (1963), and Wisconsin v. Yoder, 406 U.S. 205 (1972). Under Sherbert and Yoder, the government imposes a substantial burden on the exercise of religion when substantial pressure is placed upon a person to modify his behavior and
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 violate his beliefs, when a person is forced to choose between abiding by his or her religion and receiving a government interest, or when a person is coerced to act contrary to his or her sincere religious belief because of the threat of criminal or civil sanctions.
Only interests “of the highest order . . . can overbalance legitimate claims to the free exercise of religion.” Wisconsin v. Yoder, 406 U.S. 205, 215 (1972). Thus, RFRA forbids the government from imposing a substantial burden on a person’s religious exercise unless the burden is in furtherance of a compelling government interest and the least restrictive means possible.
     LCpl Sterling’s religious exercise was substantially
burdened here because her superior staff noncommissioned officer
commanded her to act contrary to her sincerely-held religious
belief, forcing LCpl Sterling to choose between her exercise of
religion and the criminal and civil consequences of military
disobedience.
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 ARGUMENT
I. Sterling’s Religious Exercise Was Substantially Burdened
      A.   The Broad Protections of RFRA
The Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb - § 2000bb-4 (“RFRA”) was enacted by Congress “in order to provide very broad protection for religious liberty.” Hobby Lobby Stores, Inc., 134 S. Ct. at 2760. Congress enacted these broad religious protections to overrule Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), which held “the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability laws of general applicability.” Smith, 494 U.S. at 1600 (quotation omitted). The purpose of RFRA was “to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963), and Wisconsin v. Yoder, 406 U.S. 205 (1972), and to guarantee its application in all cases where free exercise of religion is substantially burdened.” 42 U.S.C. § 2000bb(b)(1).
Accordingly, 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.” 42 U.S.C. § 2000bb-1(a) (2012). An exception exists only if the government shows that the burden is: (1) “in furtherance of a
3
 compelling governmental interest,” and the action is (2) “the least restrictive means of furthering that compelling governmental interest.” Id. at § 2000bb(b)(1)-(2).
To establish a prima facie RFRA claim, a plaintiff must present evidence sufficient to allow a trier of fact to find that “the activities the plaintiff claims are burdened by the government action must be an ‘exercise of religion.’” See id. at 2000bb-1(a); Navajo Nation v. U.S. Forest Serv., 535 F. 3d 1058, 1068 (9th Cir. 2008). “Exercise of religion” is defined to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7)(A) (2012) (emphasis added). Congress intended for this definition to be “construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this Chapter and the Constitution.” 42 U.S.C. § 2000cc-3(g).
In addition, the plaintiff must present evidence that the government action substantially burdened the plaintiff’s exercise of religion. Navajo Nation, 535 F. 2d at 1068. A substantial burden to the exercise of religion is present under RFRA when the government puts “substantial pressure on an adherent to modify his behavior and to violate his beliefs.”
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 Thomas v. Review Bd. of Indiana Emp’t Sec. Div., 450 U.S. 707, 717-18 (1981).
      B.   The Federal Courts Have Broadly Defined Substantial
           Burden To Include Government Action That Pressures or
           Coerces Religious Adherents.
The burden placed upon LCpl Sterling’s religious exercise easily qualifies as substantial under the broad understanding of that term adopted by the Supreme Court and by sister courts of appeals.
Although RFRA does not itself define “substantial burden,” the Supreme Court has addressed that question in a number of cases. Those cases hold that a substantial burden exists when a governmental entity exerts “pressure on an adherent to modify his behavior and to violate his beliefs.” Thomas, 450 U.S. at 718.
To begin at the beginning, in Sherbert v. Verner, the Supreme Court held that the government’s denial of unemployment benefits to Adell Sherbert, who refused employment because of her religious beliefs, imposed a substantial burden in violation of the Free Exercise Clause of the First Amendment. 374 U.S. 398, 399-400 (1963). Sherbert was a Seventh Day Adventist who refused to work on Saturday, her faith’s Sabbath Day. Id. at 399. The Court held that Sherbert’s disqualification from employment benefits clearly burdened the free exercise of her
5
 religion. Id. at 403. Sherbert was forced to decide between “following the precepts of her religion and forfeiting benefits . . . and abandoning one of the precepts of her religion in order to accept work.” Id. at 404. A substantial burden existed because the government had pressured Sherbert to give up her religiously-motivated conduct. Id. Instead of dissecting religious beliefs and relying on judicial perception, the Supreme Court directed lower courts to look for government coercion to give up a sincere exercise of religion in assessing substantial burden. Id.
In Yoder, Amish parents were convicted for failing to send their children to high school in violation of a compulsory high school attendance policy. 406 U.S. 205, 212 (1972). It was the defendants’ sincerely held religious belief that their children’s attendance in high school was contrary to their religion. Id. at 209. The Court reversed the defendants’ convictions, holding that the government affirmatively compelled the defendants, “under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs.” Id. at 218. The compulsory attendance statute carried precisely “the kind of objective danger to the free exercise of religion that the First Amendment was designed to prevent.” Id. at 218.
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 The Supreme Court extended its “tendency to inhibit” reasoning in Thomas v. Review Board of Indiana Employment Securities Division, 450 U.S. 707 (1981). In Thomas, a Jehovah’s Witness employee resigned because he could not perform his job of manufacturing weapons without violating the principles of his religion. Id. at 710. The Court noted, “[I]t is not within the judicial function and judicial competence to inquire whether the petitioner . . . correctly perceived the commands of [his] faith.” Id. at 716. Instead, the reviewing court was to determine whether the petitioner terminated his work because of an honest conviction that his religion forbids it. Id. Ultimately, the Court held that a “coercive impact” was enough to demonstrate substantial burden. Id. at 717. Where the government denies an important benefit because of conduct mandated by religion, the government “thereby put[s] substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists.” Id. at 717-18.
The federal courts of appeals have similarly defined substantial burden broadly to encompass any government activity that pressures or coerces religious adherents to modify their faith practices. Sister circuits recognize a substantial burden if a government action has a tendency to coerce individuals into
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 acting contrary to their religious beliefs or exert substantial pressure that violates their religious beliefs. Jones v. Williams, 791 F.3d 1023, 1031-32 (9th Cir. 2015).
Substantial burden, other courts find, “can result from pressure that tends to force adherents to forego religious precepts or from pressure that mandates religious conduct.” Midrash Sephardi, Inc. v. Town of Surfside, 366 F.2d 1214, 1227 (11th Cir. 2004). Government action constitutes a substantial burden if it coerces individuals to violate their religious beliefs or denies them “the rights, benefits, and privileges enjoyed by other citizens.” Geneva College v. Secretary U.S. Dep’t of Health and Human Services, 778 F.3d 422, 442 (3d Cir. 2015) (quoting Lyng v. Northwest Indian Cemetery Protective Assoc., 485 U.S. 439, 449 (1988)).
Of course, “the federal courts have no business addressing whether the religious belief asserted in a RFRA case is reasonable.” Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2778 (2014). Rather, in addressing the substantial-burden inquiry, sister circuits “evaluate[] the coercive effect of the governmental pressure on the adherent’s religious practice and steer[] well clear of deciding religious questions. Korte v. Sebelius, 735 F.3d 654, 683 (7th Cir. 2013). The government “may not determine which religious observances are permissible
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 because orthodox.” Grayson v. Schuler, 666 F.3d 450, 455 (7th Cir. 2012) (RLUIPA).
The court’s function, therefore, in determining whether government action substantially burdens the free exercise of religion is narrow. It is solely to ascertain whether the line drawn between conduct that is and is not permitted by an individual’s religious beliefs reflects honest conviction. Davila v. Gladden, 777 F.3d 1198, 1204 (11th Cir. 2015). Courts may consider the sincerity of a person’s belief, but “not whether a particular belief is supported by specific religious law or doctrine.” United States v. Sec’y, Florida Dep't of Corr., 2015 WL 1977795, at *14 (S.D. Fla. Apr. 30, 2015).
In short, a “substantial burden” on religious exercise is broadly defined under federal law. A substantial burden need not compel an overt violation of conscience, Thomas v. Review Bd. of Indiana Emp’t Sec. Div., 450 U.S. 707, 717 (1981), but also exists in acts of “coercive impacts,” id.; “substantial pressure,” id. at 717-18; or policies with “a tendency to coerce individuals into acting contrary to their religious beliefs.” Lyng v. Northwest Indian Cemetary Protective Ass’n, 485 U.S. 439, 450 (1988).
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       C.   LCpl Sterling’s Religious Exercise Was Substantially
           Burdened
The NMCCA found that LCpl Sterling had not exercised a religious belief because her use of biblical quotations was not “part of a system of religious belief,” and therefore not protected under the broad umbrella of RFRA. A9. This conclusion was inescapably wrong. See Appellant’s Br. at 10-11, 18-25.
When LCpl Sterling sought Trinitarian protection by placing biblical quotations at her workstation, she was engaging in an exercise of religion. See id. When her superior staff noncommissioned officer ordered her to remove the small signs, this substantially burdened LCpl Sterling exercise of religion, forcing her to choose between her religious practice of seeking divine patronage and maintaining her military employment.
Members of the military who fail to obey their superiors’ orders risk serious consequences. Articles 90, 91, and 92 of the Uniform Code of Military Justice make it a crime for military members to disobey superior officers. When LCpl Sterling disobeyed the direct order from her superior officer to refrain from her religious practice, she was exposed to very real punishment: expulsion from the military and the loss of her chosen career.
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 This threat of punishment is just the kind of substantial burden the Supreme Court identified in Yoder, where Wisconsin’s high school attendance requirement imposed a substantial burden on Amish parents whose religious beliefs compelled them to keep their children out of high school. Yoder, 406 U.S. 205. The government had affirmatively compelled the parents, “under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs.” Id. at 218.
As in Yoder, here the government affirmatively compelled LCpl Sterling to actions at odds with her religious beliefs. Under threat of punishment, SSgt Alexander directly ordered LCpl Sterling to remove the religious symbols, the “protection of three around [her].” R. at 308, 310; Cf. Yoder, 406 U.S. 205 (1972). When LCpl Sterling did not comply, choosing to continue to exercise her religion, the government directly interfered with this religious practice: SSgt Alexander removed the religious signs herself. And the military has since removed LCpl Sterling as well. She has been discharged from her employment.
In addressing the substantial-burden inquiry, sister circuits “evaluate[] the coercive effect of the governmental pressure on the adherent’s religious practice and steer[] well
11
 clear of deciding religious questions. Korte, 735 F.3d at 683; see also Hobby Lobby Stores, Inc., 134 S. Ct. at 2778 (“[T]he federal courts have no business addressing (whether the religious belief asserted in a RFRA case is reasonable).”). This Court’s inquiry is thus a narrow one regarding sincerity (and no one suggests that LCpl Sterling’s belief was insincere); not “whether a particular belief is supported by specific religious law or doctrine.” Sec’y, Florida Dep't of Corr., 2015 WL 1977795, at *14.
The coercive effect here is unmistakable. In view of the military requirement to obey a direct command, the order to abandon her religious symbols “tend[ed] to force [LCpl Sterling] to forego religious precepts,” Midrash Sephardi, Inc. v. Town of Surfside, 366 F.2d 1214, 1227 (11th Cir. 2004), and exerted substantial pressure on LCpl Sterling to modify her religious behavior. Thomas, 450 U.S. at 717-18.
The threat of criminal and civil sanctions was alone coercive enough to qualify as a substantial burden. See, e.g., id.; Midrash Sephardi, 366 F.2d at 1227; Yoder, 406 U.S. at 218. But the government did not stop there. When LCpl Sterling continued her religious exercise despite the threat of criminal sanctions, the government itself removed and destroyed the religious symbols at issue. The government not only disallowed
12
 LCpl Sterling’s religious exercise but also fired her because of it. Simply put, the government’s command to LCpl Sterling to remove her religiously-motivated symbols, forcible removal of those symbols, and imposition of punishment, substantially burdened LCpl Sterling’s sincere exercise of religion.
CONCLUSION
     This Court should reverse the decision below.
                                        /s/Erin Morrow Hawley
                                        Erin Morrow Hawley
                                        Pro Hac Vice
                                        Angela Kennedy
                                        Brian McGarry
                                        Kristen Stallion
                                        University of Missouri
                                        School of Law
                                        203 Hulston Hall
                                        Columbia, MO 65201
                                        (573)823-1256
                                        hawleye@missouri.edu
 13
                     CERTIFICATE OF COMPLIANCE
1. This brief complies with the type-volume limitation of Rule
26(d) because it contains 2,528 words.
2. This brief complies with the typeface and style requirements
of Rule 37 because it has been prepared in a monospaced typeface
using Microsoft Word Version 2010 with 12-pt style Courier New
font, 10 characters per inch.
                                        /s/Erin Morrow Hawley
                                        Erin Morrow Hawley
                                        Pro Hac Vice
                                        University of Missouri
                                        School of Law
                                        203 Hulston Hall
                                        Columbia, MO 65201
                                        (573)823-1256
                                        hawleye@missouri.edu
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                       CERTIFICATE OF SERVICE
I certify that on January 12, 2016, I caused the foregoing
amicus brief to be electronically delivered to this Court, and
that a copy was electronically delivered to counsel listed
below.
Counsel for Appellee:
     Brian K. Keller (brian.k.keller@navy.mil)
     Colonel Mark Jamison (mark.jamison@navy.mil)
Counsel for Appellant:
     Paul D. Clement (pclement@bancroftpllc.com)
     George W. Hicks (ghicks@bancroftpllc.com)
     Hiram S. Sasser (hsasser@libertyinstitute.org)
     Michael D. Berry (mberry@libertyinstitute.org)
     Major John J. Stephens (john.j.stephens@navy.mil)
                                        /s/Erin Morrow Hawley
                                        Erin Morrow Hawley
                                        Pro Hac Vice
                                        University of Missouri
                                        School of Law
                                        203 Hulston Hall
                                        Columbia, MO 65201
                                        (573)823-1256
                                        hawleye@missouri.edu
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