The Supreme Court of the United States—and thus the federal judiciary—treats military law as sui generis, a thing unique unto itself. In the rare grant, it generally substantially defers to the executive branch outside of questions of jurisdiction. I have often wondered why. The Court hears a wide range of complex cases and, at times, from specialized communities. But the military is treated differently. I wonder if the evolution of same sex rights at the Court may tell us why.
Modern day accusations of using the military for social experimentation appear unprecedented to modern readers. But this is just another example of the ever growing divide between the civilian population and military society. Since the early days of the Republic, military society has grappled with the most difficult social issues of the day well in advance of the broader public. Unlike broader society, the need for discipline forced the difficult questions debated in broader society into courts-martial. These stories have largely been relegated to a few academically minded military members. And our holistic understanding of our history has suffered. Until now. I am truly honored to review Dr. Chris Bray’s recent excellent book, Court-Martial: How Military Justice Has Shaped America from the Revolution to 9/11 and Beyond.
My last post included a brief discussion about public drunkenness on the part of enlisted personnel as a sort of rebellion against the rigid and erratic conditions of military life in the Revolutionary and Civil War era, and the officers who administered this society and its corresponding disciplinary system. In this post, I’d like to have a bit of fun and take a satirical look at one of today’s most common acts of rebellion—the slow salute.
In all the debate over the state of military justice, little, if any, attention is paid to the society it governs. This society is seemingly treated as a monolith, ever constant over periods of great change within itself and broader society over centuries. I’ve continually believed that to understand the evolution of military law, one must also understand the evolution of military society.
Readers of CAAFlog recently learned about a Marine Corps court-martial that sentenced a Marine to a bad-conduct discharge for, amongst other offenses, violating an order to remove three Bible quotes from her workspace. If her petition is granted, the Government will face perhaps its most impressive adversary, the former Solicitor General of the United States, Paul Clement. Of the many interesting aspects of this case, two warrant attention here. First, the question of whether the order was lawful raises important First Amendment issues. It also reminds me of my earlier post concerning my belief that there is no homogenous “military society;” it is more likely a society of societies. Second, Mr. Clement’s argument, successful in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), requires that the Government demonstrate a compelling interest in order to infringe upon the constitutional rights of a service member. What these are and how to articulate them is the subject of my recent article accepted for publication this fall by the University of Memphis Law Review.
LCpl Monifa Sterling, a self-identified Christian, taped three copies of a quote from the Bible (“No weapon formed against me shall prosper”) around her work area. These quotes were intended to reflect the “trinity,” the Christian belief of three persons in one God. At trial, she testified that this was to protect herself from what she considered to be harassment by fellow Marines.
Her immediate supervisor saw these quotations and ordered them removed. Noticing that they were not removed by the end of the duty day, LCpl Sterling’s supervisor removed them and threw them in the trash. LCpl Sterling reposted them the next day. Her supervisor again tossed them in the trash after LCpl Sterling did not remove them by the end of the day, as ordered. For these and other incidents not relevant here, the Marine Corps preferred charges against LCpl Sterling, which included disobeying the lawful order of a senior non-commissioned officer.
At trial, LCpl Sterling challenged the lawfulness of her supervisor’s order to take down the Bible quotes. The Government put on no evidence that she shared her desk with another Marine, and, as argued by Mr. Clement in his Supplement to Petition for Grant of Review, the Government admitted no evidence that any Marine was “distracted, annoyed, or agitated by-or even saw-the quotations.” According to the Supplement, every witness that testified stated that they were never distracted, annoyed, or agitated.
The military judge denied LCpl Sterling’s motion to dismiss, and the Navy-Marine Corps Court of Criminal Appeals (NMCCA) affirmed the conviction. The NMCCA decision is definitely worth a read for those interested in more details on this particular case.
In his Supplement, Mr. Clement argues that the Government must assert a compelling interest in order to infringe upon a service member’s exercise of his or her religion. He began by noting that the Supreme Court previously held that “neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest.” Hobby Lobby Stores, Inc., 134 S. Ct. at 2761. In response, the subsequent Religious Freedom Restoration Act (RFRA), however, required that “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). In order to do so, the Government must successfully demonstrate that such action is in furtherance of a compelling interest and is the least restrictive means of furthering that interest. Id. §2000bb-1(b). In 2000, Congress enacted the Religious Land Use and Institutional Persons Act (RLUIPA). This act broadened RFRA’s definition of “exercise of religion” to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” Id. §2000cc-5(7)(A). The Hobby Lobby decision thus noted that RLUIPA amended RFRA’s definition of “exercise of religion” beyond that articulated in First Amendment case law. And it applies to the military.
There are a number of interesting issues in this case. But what may be overlooked is that this case lends further evidence to the proposition that “military society” is actually a heterogeneous compilation of sub-societies. Conduct sufficient to warrant a special court-martial in the Marine Corps may only warrant some sort of lesser punishment in another service. And this may be completely appropriate. There are differences between the services, and within them. I believe that the challenge is that, in a criminal system that applies the civilian rule unless there is a military necessity not to, it is incumbent upon the Government to articulate why a particular action, as applied, warrants the lesser protection.
If Mr. Clement’s argument prevails, which it is likely to do, the Court will acknowledge that service members are entitled to substantial rights, as are their civilian counterparts, unless the military articulates a compelling interest in applying a different rule, or application of such established rule. In my upcoming article to be published by the University of Memphis Law Review, I argue that the appropriate articulation of a compelling interest is military necessity. I go further and, after an exhaustive review of the Court’s decisions, propose ways in which the Government may articulate sufficient examples of military necessity, as well as how defense may articulate the Government’s failure to meet such an exacting standard. Anticipated publication is this fall.
Both the Supreme Court of the United States and military courts have struggled to formulate an adequate constitutional framework for military society. The simplest explanation may be that these courts have so far failed to articulate an appropriate legal framework that works in military society. This focus is on the “law side” of the equation. There is certainly much truth to this statement. But perhaps there should be more focus on the nature of the military society courts are to oversee. Perhaps practitioners and scholars have failed to properly describe the particular military society at issue.
This Court has long recognized that the military is, by necessity, a specialized society separate from civilian society. We have also recognized that the military has, again by necessity, developed laws and traditions of its own during its long history. The differences between the military and civilian communities result from the fact that “it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise.”
— William H. Rehnquist, Associate Justice, Supreme Court of the United States
Parker v. Levy, 417 U.S. 733, 743 (1974) (citation omitted)