Another Blow to Religious Freedom

On June 5th the United States Supreme Court refused to hear an appeal of the decision of The United States Court of Appeals for the Armed Forces. I had filed an amicus brief (friend of the court filing on behalf of the defendant) in this case. Why would an Orthodox Rabbi, file an amicus curiae brief with a military appellate court?  A good question. And I have a good answer.

Approximately two years ago I was approached by the Thomas Moore Society of Chicago, a Catholic-based, non-profit organization dedicated to protecting religious freedom, to file an amicus curiae brief on behalf of Lance Corporal Monica Sterling of the United States Marine Corps.   Reading up on the details of the case, I was shocked to learn the Corporal had been court-martialed in large measure because she refused to remove a paraphrase of a passage from Isaiah she had pasted upon her computer screen.

Isaiah 54:7 “No weapon that is formed against thee shall prosper; and every tongue that shall rise against thee in judgment thou shalt condemn. This is the heritage of the servants of the L-RD, and their righteousness is of me, saith the L-RD.”

To me this was but another example of the growing animosity toward religion demonstrated by the Obama administration. As you may remember, that Administration mounted cases against the Little Sisters of the Poor and The Hobby Lobby Company for their refusal to offer abortion services in their contracts with employees based upon their deeply held religious beliefs.  Indeed, the Administration had inappropriately reinterpreted the Separation of Church and State and its concomitant expression in the Religious Freedom Restoration Act signed into law by President Clinton, all premised upon the foundation of the First Amendment to the United States Constitution claiming this freedom was limited to the brick and mortar building of a House of Worship which employed only members of that Church’s Faith.  The Little Sisters of the Poor, who are dedicated to caring for indigent seniors of any religious background, were alleged to be disqualified from this protection because their employees, social workers, physicians etc. are not required to be Catholics.  Fortunately the Supreme Court in both cases sided with religious liberty and against the Obama Administration. I was quite confident that Corporal Sterling had a valid argument that was firmly based upon her right to her free exercise of religious freedom.

Moreover, if there is a group in our society that is desperately in need of religious succor and conviction it is the military. That a soldier would want to remind herself of the power of G-d on a regular basis by simply typing a short passage from the Bible and placing it upon the edge of her computer screen appeared to me a positive and rather innocent action.  To be court martialed for this was unacceptable. I had no doubt the Military Court would overturn this action and reinstate the Corporeal. It didn’t which necessitated appealing the case to the United State Supreme Court.  Given the Court’s willingness to hear both the Little Sisters of the Poor and Hobby Lobby cases and the Justices ruling on behalf of these defendants, it seemed evident that same Supreme Court would entertain Corporeal Sterling’s appeal and find in her favor.

And so though the good offices of the Thomas Moore Society I had filed, Brief of Amicus Curiae Rabbi Philip Lefkowitz in support of Appellant USCA Dkt. No. 15-0510/MC Crim. App. No. 201400150. In part, I stated:

“Amicus contends that, in addition to creating a new, unsupported legal standard for the Religious Freedom Restoration Act, the lower court also showed a hostility to religious exercise in general that should be firmly rejected by this Court. First, the lower court ignored common cultural knowledge about Judeo-Christian religious traditions, so common as to necessitate judicial notice. Such disregard constitutes clear factual error, regardless of legal standard applied. Second, the lower court chose the worst possible interpretation of Appellant’s verse, utterly condescending toward the fortitude and intelligence of members of the Marine Corps. This, too, constitutes clear error, in that it is not only unsupported by the record, but also conjecture unsupported by sensible rationale.

Members of our armed forces give up many liberties, taken for granted by civilians, when they choose to enter a branch of the military and serve our country. One liberty, however, that they are never asked to give up is the right to live their lives in accordance with their chosen faith traditions. They have fought and continue to fight for the liberty of all our people, including religious liberty, and therefore it does them a grave disservice to do anything but protect and honor their own religious freedoms. Lance Corporal Monifa Sterling placed a constant reminder to herself of what she viewed as her G-d’s promise to protect and defend her by displaying a paraphrase of a Bible verse, Isaiah 54:17, “No weapon formed against me shall prosper,” in three places at her desk. This action is unquestionably religious, deserving of the full protection of the Religious Freedom Restoration Act. Nonetheless, the decision of the court below displays a baffling animus toward not only her religious exercise, but religious exercise in general. It arbitrarily created a new legal standard that flies in the face of precedent and found a “valid military purpose” to justify a supervisor’s overreach only by accepting the most unfavorable interpretation possible of the verse displayed.”

Her Attorney, Kelly Shackelford, President of the First Liberty Institute and Sterling’s chief counsel stated regarding the Supreme Court’s refusal to hear her case, “Because the Supreme Court did not decide to review the case, the travesty below by the Court of Appeals for the Armed Forces will now stand. The military court’s outrageous decision means federal judges and military officials can strip our service members of their constitutional rights just because they don’t think someone’s religious beliefs are important enough to be protected. Our service members deserve better”

I agree.

About the Author
Retired and residing in Jackson, New Jersey, Rabbi Philip Lefkowitz was the rav of Agudas Achim North Shore Congregation in Chicago. During his nearly five decades in the rabbinate he led congregations in the U.S., Canada and the United Kingdom. He served as an officer, Executive Committee member and chair of the Legislative Committee of the Chicago Rabbinical Council.
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