It is a specific portion of Sterling’s past that is still in dispute, however. Sterling was found guilty of disobeying a lawful order in part because she refused to take down three signs in her workspace with the message: “No weapon formed against me shall prosper.” It’s a derivation of the biblical passage Isaiah 54:17, a motivational message that says that “no weapon that is formed against you shall prosper.”
Sterling, a Christian, had the message posted in three places around her computer – one for each part of the Holy Trinity, she said, according to court documents. Her boss, a staff sergeant, told her to take the signs down repeatedly, and did so herself when Sterling refused to do so. The senior Marine found their tone combative.
The case has been taken up by the Liberty Institute, a religious liberty advocacy group, and Paul D. Clement, a former solicitor general of the United States and current law professor at Georgetown University. Sterling should have been allowed to keep the religious signs in her Marine Corps office under provisions in the Religious Freedom Restoration Act, a 1993 federal law that granted broad freedom of religious expression, they argue.
A brief filed Tuesday by Sterling’s legal team requests that the case be reviewed by the U.S. Court of Appeals for the Armed Forces, which is considered one level below the U.S. Supreme Court. It comes after a lower court, the Navy-Marine Corps Court of Appeals, denied another appeal with some similarities.
The new appeal says the lower court was wrong to say that there was no evidence that Sterling’s posting of the signs was an exercise of religion because it was never demonstrated to be “part of a system of religious belief.” The Navy-Marine Corps appeals court noted that Sterling had never told her staff sergeant that the signs had a religious connotation, and it was reasonable for her to assume that Sterling had simply posted reminders for herself that adversaries could not harm her.
The Navy-Marine Corp appeals court also ruled that the judge in Sterling’s original case was right to rule on whether removing the sign had a valid military purpose, something Sterling contested.
“Military orders are presumed to be lawful and are disobeyed at the subordinate’s peril,” the appeals court found.
Sterling’s lawyers argue that it was unreasonable for the Navy-Marine Corps appeals court to ignore the Religious Freedom Restoration Act.
“There can be little doubt that the [appeals court’s] improperly narrow construction of ‘exercise of religion’ was materially prejudicial to LCPl Sterling’s substantial rights, for under a correct interpretation of that term, her conduct plainly constituted an ‘exercise of religion’ ” subject to the Religious Freedom Restoration Act, said the new request for a review by the higher court.
An attorney at the Liberty Institute, Michael Berry, said that if Sterling wins her appeal and the case is ultimately re-tried, legal protections exist so that Sterling could not be sentenced to a stiffer punishment. It’s also possible the Marine Corps could simply decide to let the case go, especially since she already has left the service.
“A lot of times, they end up just saying ‘You know what? I feel like they got their pound of flesh, and they’re ready to move on,’ ” said Berry, a former Marine lawyer who is now senior counsel of military affairs for the Liberty Institute.
Expunging the bad-conduct discharge from Sterling’s record would have life-long implications for her, Berry added. Any time she applies for a job now and lists her military service, the punishment is listed.
The Marine Corps did not respond to a request Wednesday for comment. It’s unclear whether the higher court will take up the case, but a decision is likely later this summer, Berry said.
At least one other religious liberty advocate thinks the lower court’s findings should be left in place. Mikey Weinstein, the founder of the Military Religious Freedom Foundation, said the Marines appear to have handled Sterling’s case right the first time. His organization regularly advocates for keeping religion out of the military.
“We are a secular nation, and particularly so in the U.S. military,” he said.
Weinstein cited the 1974 Supreme Court case “Parker vs. Levy,” which held that the military is a “specialized society from civilian society” where stricter guidelines on free speech are permitted. They are necessary to maintain unit cohesion, Weinstein said.
“The standard applies inside the military as outside the military,” Berry said. “The same standard that applies to federal employees applies to military employees as well.”