“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 and armies and navies to fight or be ready to fight wars should the occasion arise.’”
“We find nothing in the history or constitutional treatment of military tribunals which entitles them to rank along with Article III courts as adjudicators of the guilt or innocence of people charged with offenses for which they can be deprived of their life, liberty or property. Unlike courts, it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise.”
It has been a little time since my last post on my research. My foray into military justice scholarship began with a theory that the Supreme Court is largely hands off toward the military justice system because Congress has organized this jurisdiction akin to state jurisdictions, in contrast to other specialized subject areas, such as patents and trademarks. Assuming that to be true, substantial questions follow that have been largely ignored by scholars. I have chosen to start with the effectiveness and efficiency of the institutions within this jurisdiction. This begins with how the Supreme Court interacts with this community, one of three (inmates, students, military) in America that do not enjoy the full panoply of constitutional rights. After some initial background posts, here I dive into the leading case concerning the relationship between the inmate community and the Constitution.
Service members in the United States military are not excluded from the constitutional protections they swear an oath to protect; it’s just that “military necessity” requires these protections be applied differently to this community. There are individual situations that arise in the general population which necessitate an exception to an otherwise constitutional requirement (a search warrant or rights advisement, for example). But “military necessity” appears different. It is essentially a blanket exception for an entire community of people.
I began researching other communities whereby some reason justified a similar blanket exception to compare how this principle is applied. I found two—inmates and students.
I published an article in the University of Memphis Law Review that examined the legal landscape in these three communities. The Supreme Court of the United States (“Court”) has held that individuals in these communities do not give up their constitutional rights simply because they belong to their respective communities. But the same general reasons require a different application to these communities: order, discipline, and safety. The gravity of these needs, and the complexity of these specialized communities, requires a somewhat substantial deference to those who administer them.
In spite of these circumstances, the Court has actively supervised and engaged with the inmate and student communities. Using a well-understood framework, it applies strict scrutiny (see here for a brief introduction) to statutes and regulations that purport to infringe upon a community member’s constitutional rights. The military community gets something less.
Unlike the inmate and student communities, in which cases and controversies arise in multiple state and federal courts, courts-martial are limited to the military justice system. Like the federal and many state systems, the military justice system has three levels of courts. The highest is the United States Court of Appeals for the Armed Forces (“CAAF”), a five member civilian Article I court. One, but certainly not the only, explanation for the Court’s substantial hands-off approach to the military community is the existence of CAAF. It arguably serves as a court of last resort, much like state supreme courts.
A second observation is the absence of any established framework to analyze constitutional questions in the military community. It isn’t defined; judges just know it when they see it.
These two observations seem a good place to start delving into deeper. After comparing and contrasting the similarities and differences in the judicial institutions in which cases and controversies in these communities arise, we’ll start a little tour of the inmate community first.
 46 U. Mem. L. Rev. 61 (2015).
United States v. Clay, 1 U.S.C.M.A. 74 (1951), held that service members are specifically excluded from the protections enshrined in the Constitution. Instead, they were solely entitled to the statutory rights granted them by Congress. These rights, referred to as “military due process,” may mirror those found in the Constitution, but they need not be. That all changed with the CAAF’s decision in United States v. Jacoby, 11 U.S.C.M.A. 428 (1960), which makes it a landmark—if not THE landmark—military justice decision.
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.