The Marine Corps did not immediately respond to a request for comment.
Sterling’s court-martial and subsequent sentencing stemmed from a single Bible verse she had taped three times in various locations around her cubicle. She was charged after refusing to take down the verse after her supervisor, a staff sergeant, ordered her to. According to court documents, her supervisor found the language “combative.” The verse, “No weapon formed against me shall prosper,” is a riff on Isaiah 54:17. The original reads: “No weapon that is formed against you shall prosper.”
Shortly after her sentencing, her case was taken up by the First Liberty Institute, a group that advocates on behalf of religious freedoms. Mike Berry, Sterling’s lead attorney, thinks that her case can be overturned as it falls under provisions in the Religious Freedom Restoration Act, a 1993 federal law that allowed for wide-ranging freedom of religious expression. According to Berry, the act has been enforced at the state and federal level, but no court has ruled that it must be upheld in the military.
“If you look at the legislative history of the law, Congress made it very clear that they intended this to apply to people in the military,” Berry said. “And there’s never been a court case to decide if that’s true or not until now.”
Sterling’s case was denied appeal by the Navy-Marine Corps Court of Criminal Appeals because the court thought that Sterling’s actions were not covered by the Religious Freedom Restoration Act and were not a religious exercise, according to Berry. The court also noted that Sterling did not tell her supervisor that the signs were religious in nature and that the original judge was correct to say that taking down the signs had a valid purpose.
Lawyers for the government argued in a brief filed for the case that Sterling “should not receive a windfall” now, having failed to raise any of the contested issues at her original trial. The brief goes on to say that trial judges should not be “blindsided by reversal of their trial rulings on ground of statutory defense never litigated before them at trial.”
Paul D. Clement, a law professor at Georgetown University and former solicitor general of the United States, will argue Sterling’s case Wednesday, and Berry anticipates that the court will come to a decision this summer.
Dan Lamothe contributed to this report.