From the desk of the Arkansas Attorney General

January 16-22, 2017

Update on religious rights of soldiers:  Supreme Court petition alert

Leslie Rutledge
Arkansas Attorney General

The Religious Freedom Restoration Act (RFRA) guarantees all Americans a degree of religious liberty that extends beyond the rights afforded by the First Amendment. It prohibits the government from imposing a substantial burden on one’s exercise of religion, unless the government can satisfy strict scrutiny. And its protections apply with full force to all American citizens, including the nearly two million men and women who serve in our nation’s armed forces and courageously defend our most fundamental liberties.  

The U.S. Supreme Court has been asked, in the case of Sterling v. United States to decide whether a direct order requiring a Marine to remove three copies of a Bible verse she posted at her computer workstation is categorically exempt from RFRA’s protection because the Marine’s posting of the verse, while motivated by her religion, was not compelled by it. The U.S. Court of Appeals for the Armed Forces (USCAAF) concluded that the direct order prohibiting her from engaging in that religious activity did not qualify as a substantial incursion on the exercise of religion. In the Court’s view, because the Marine’s religion neither required her to post the Bible verse, nor prevented her from removing it from her workstation, the direct preclusion of her religious exercise could not be deemed substantial burden under RFRA. Absent a substantial infringement, the Marine had failed to demonstrate a prima facie violation of RFRA, and the government bore no burden to justify its direct prohibition of her religious exercise.  

The Marine has now asked the nation’s highest court to review the USCAAF’s ruling. As her petition argues, the Court should hear the case because USCAAF’s ruling is at odds with both RFRA and Supreme Court precedent, which makes clear that religious exercise, including, for example, posting Bible verses, is protected regardless of whether it is compelled by or central to the adherent’s faith. This case stands a good chance of being reviewed by the Court because there is a well-developed split among the federal courts of appeals about the scope of RFRA’s “substantial burden” standard.  

I joined many other states in submitting an amicus brief in support of the Marine at the USCAAF level. I very much hope that the Supreme Court takes this case and makes clear that the government should have to justify an infringement of a soldier’s religious exercise even if that exercise is one of choice and not absolute religious commandment. Of course, in the military context, the government may well be able to justify its infringement in a lot of cases, but requiring such justification is the important part – it protects religious believers against arbitrary and unnecessary government action.    

Leslie Rutledge is the 56th Attorney General of Arkansas. Elected on Nov. 4, 2014, she is the first woman and first Republican in Arkansas history to be elected to the office.