This opinion is subject to revision before publication


     UNITED STATES COURT OF APPEALS
              FOR THE    ARMED FORCES
                    _______________

                  UNITED STATES
               Appellee/Cross-Appellant
                            v.
     Monifa J. STERLING, Lance Corporal
  United States Marine Corps, Appellant/Cross-Appellee
             No. 15-0510 & No. 16-0223
                Crim. App. No. 201400150
    Argued April 27, 2016—Decided August 10, 2016
      Military Judges: C. M. Greer and N. A. Martz
For Appellant/Cross-Appellee: Paul D. Clement, Esq.
(argued); Major John J. Stephens, USMC, Michael D.
Berry, Esq., George W. Hicks Jr., Esq., and Michael H.
McGinley, Esq. (on brief).
For Appellee/Cross-Appellant: Brian K. Keller, Esq.
(argued); Colonel Mark K. Jamison, USMC (on brief).
Amici Curiae for Appellant/Cross-Appellee: J. Mark
Brewer, Esq., Michael Connelly, Esq., John S. Miles,
Esq., Jeremiah L. Morgan, Esq., Robert J. Olson,
Esq., William J. Olson, Esq., and Herbert W. Titus,
Esq. (on brief) – for Citizens United, Citizens United
Foundation, U.S. Justice Foundation, Faith and Ac-
tion, Public Advocate of the U.S., Inc., Conservative
Legal Defense and Education Fund, Institute on the
Constitution, E. Ray Moore, and George P. Byrum;
Ashley G. Chrysler, Esq., Conor B. Dugan, Esq., and
Matthew T. Nelson, Esq. (on brief) – for Nine Retired
General Officers; Daniel Briggs, Esq. (on brief) – for
Alliance Defending Freedom and Chaplain Alliance
for Religious Liberty; Eric Baxter. Esq., and Daniel
Blomberg, Esq. (on brief) – for Aleph Institute et al.;
Jocelyn Floyd, Esq. (on brief) – for Rabbi Philip
Lefkowitz; Robert W. Ash, Esq., Laura B. Hernandez,
Esq., and Jay Alan Sekulow, Esq. (on brief) – for
Members of Congress, The American Center for Law
and Justice, and The Committee to Protect Religious
Liberty in the Military; E. Scott Pruitt, Attorney Gen-
eral of Oklahoma, Patrick R. Wyrick, Solicitor Gen-
eral of Oklahoma, and Mithun Mansinghani, Deputy
Solicitor General of Oklahoma (on petition) – for the
State of Oklahoma.
   Amici Curiae for Appellee/Cross-Appellant: Bradley
   Girard, Esq., and Richard B. Katskee, Esq. (on brief)
   – for Americans United for Separation of Church and
   State, Jewish Social Policy Action Network, and Peo-
   ple for the American Way Foundation.
   Amicus Curiae in Support of Neither Party: E. Scott
   Pruitt, Attorney General of Oklahoma, Mithun
   Mansinghani, Deputy Solicitor General of Oklahoma,
   Adam Paul Laxalt, Attorney General of Nevada,
   Mark Brnovich, Attorney General of Arizona, Leslie
   Rutledge, Attorney General of Arkansas, Sam Olens,
   Attorney General of Georgia, Doug Peterson, Attorney
   General of Nebraska, Alan Wilson, Attorney General
   of South Carolina, Ken Paxton, Attorney General of
   Texas, Sean D. Reyes, Attorney General of Utah, Pat-
   rick Morrisey, Attorney General of West Virginia (on
   brief) – for the States of Oklahoma, Nevada, Arizona,
   Arkansas, Georgia, Nebraska, South Carolina, Texas,
   Utah, and West Virginia; Donald G. Rehkopf Jr., Esq.
   (on petition) – for The Military Religious Freedom
   Foundation.
   Judge RYAN delivered the opinion of the Court, in
   which Chief Judge ERDMANN, Judge STUCKY, and
   Senior Judge COX, joined. Judge OHLSON filed a sepa-
   rate dissenting opinion.
                      _______________

   Judge RYAN delivered the opinion of the Court.
    A special court-martial consisting of officer and enlisted
members convicted Appellant, contrary to her pleas, of one
specification of failing to go to her appointed place of duty,
one specification of disrespect toward a superior commis-
sioned officer, and four specifications of disobeying the law-
ful order of a noncommissioned officer (NCO), in violation of
Articles 86, 89, and 91, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. §§ 886, 889, 891 (2012). The members
sentenced Appellant to a reduction to pay grade E-1 and a
bad-conduct discharge. The convening authority approved
the sentence as adjudged. The United States Navy-Marine
Corps Court of Criminal Appeals (NMCCA) affirmed the
findings and sentence. United States v. Sterling, No.
NMCCA 201400150, 2015 CCA LEXIS 65, at *2, *30, 2015
WL 832587, at *1, *10 (N-M. Ct. Crim. App. Feb. 26, 2015)
(unpublished).
   The Religious Freedom Restoration Act (RFRA), 42
U.S.C. 2000bb-1 (2012) (as amended), which, by its own

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    United States v. Sterling, No. 15-0510/MC & 16-0223/MC
                      Opinion of the Court

terms, applies to every “branch, department agency, instru-
mentality, and official (or other person acting under color of
law) of the United States,” 42 U.S.C. § 2000bb-2(1), also ap-
plies in the military context. Indeed, at least two general or-
ders prescribe the manner in which religious accommoda-
tions to rules of general applicability should be processed
and facilitated in the military. Dep’t of Defense Instr.
1300.17, Accommodation of Religious Practices Within the
Military Services (Feb. 10, 2009, Incorporating Change 1,
Jan. 22, 2014) [hereinafter DoDI 1300.17]; Dep’t of the Na-
vy, Secretary of the Navy Instr. 1730.8B CH-1, Accommoda-
tion of Religious Practices (Mar. 28, 2012) [hereinafter
SECNAVINST 1730.8B CH-1]. But we note from the outset
that this is not the usual case where an individual or group
sought an accommodation for an exercise of religion and it
was denied. Nor is it a case where the practice at issue was
either patently religious, such as the wearing of a hijab, or
one where it was not but a government actor somehow knew
the practice was religious and prohibited it on that basis.
Rather, the claimed exercise of religion at issue in this case
involved posting the printed words “[n]o weapon formed
against me shall prosper” at a shared workspace in the con-
text of Appellant’s contentious relationship with her superi-
ors.
    As the NMCCA concluded, Appellant did not inform the
person who ordered her to remove the signs that they had
had any religious significance to Appellant, the words in
context could easily be seen as combative in tone, and the
record reflects that their religious connotation was neither
revealed nor raised until mid-trial. See Sterling, 2015 CCA
LEXIS 65, at *11, *14–15, *19, 2015 WL 832587, at *4, *5,
*6. Nor, despite the existence of procedures for seeking a re-
ligious accommodation, did Appellant seek one. Sterling,
2015 CCA LEXIS 65, at *15, 2015 WL 832587, at *5. None-
theless, the following issues are before this Court:

                   SPECIFIED ISSUES

      I. DID APPELLANT ESTABLISH THAT HER
      CONDUCT      IN   DISPLAYING    SIGNS
      REFERENCING BIBLICAL PASSAGES IN
      HER         SHARED        WORKPLACE
      CONSTITUTED      AN    EXERCISE    OF
      RELIGION WITHIN THE MEANING OF THE
      RELIGIOUS     FREEDOM    RESTORATION
      ACT, 42 U.S.C. 2000bb-1 (2012), AS

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    United States v. Sterling, No. 15-0510/MC & 16-0223/MC
                      Opinion of the Court

      AMENDED? IF SO, DID THE ACTIONS OF
      HER   SUPERIOR   NONCOMMISSIONED
      OFFICER IN ORDERING HER TO TAKE
      THE SIGNS DOWN, AND IN REMOVING
      THEM WHEN SHE DID NOT, CONSTITUTE
      A    SUBSTANTIAL     BURDEN     ON
      APPELLANT’S EXERCISE OF RELIGION
      WITHIN THE MEANING OF THE ACT? IF
      SO,   WERE   THESE    ACTIONS   IN
      FURTHERANCE OF A COMPELLING
      GOVERNMENT INTEREST AND THE
      LEAST   RESTRICTIVE    MEANS    OF
      FURTHERING THAT INTEREST?
      II.  DID    APPELLANT’S   SUPERIOR
      NONCOMMISSIONED OFFICER HAVE A
      VALID MILITARY PURPOSE IN ORDERING
      APPELLANT     TO    REMOVE   SIGNS
      REFERENCING     BIBLICAL  PASSAGES
      FROM HER SHARED WORKPLACE?

                   CERTIFIED ISSUES

      I. DID APPELLANT’S FAILURE TO FOLLOW
      AN       INSTRUCTION      ON      THE
      ACCOMMODATION         OF    RELIGIOUS
      PRACTICES IMPACT HER CLAIM FOR
      RELIEF     UNDER     THE    RELIGIOUS
      FREEDOM RESTORATION ACT?

      II. DID APPELLANT WAIVE OR FORFEIT
      HER        RELIGIOUS         FREEDOM
      RESTORATION ACT CLAIM OF ERROR BY
      FAILING TO RAISE IT AT TRIAL?

    We hold that the orders to remove the signs were lawful.
Appellant’s claimed defense to violating those orders under
RFRA was preserved, but Appellant has failed to establish a
prima facie RFRA case. Moreover, we hold that her failure to
either inform her command that the posting of the signs was
religiously motivated or seek an accommodation are both
relevant to Appellant’s failure to establish that the orders to
remove the signs constituted a substantial burden on her
exercise of religion. Consequently, while the NMCCA’s
RFRA analysis was flawed, we affirm the decision on other
grounds.




                              4
    United States v. Sterling, No. 15-0510/MC & 16-0223/MC
                      Opinion of the Court

                         I. FACTS

   In December 2012, Appellant was assigned to Section-6
(S-6) of the 8th Communications Battalion. Staff Sergeant
(SSgt) Alexander was her immediate supervisor. Appellant
assisted Marines with their Common Access Cards. Marines
sat next to Appellant’s desk while she assisted them. The
military judge found that, during this time, Appellant
shared her desk with another junior Marine.
    Appellant had ongoing difficulties and a contentious rela-
tionship with many superiors in her command, including
SSgt Alexander. While Appellant characterized the difficul-
ties as “people … picking on [her],” from the command’s per-
spective, the difficulties were that:
      [Appellant] fails to provide a positive contribu-
      tion to the unit or Corps. [Appellant] cannot be
      relied upon to perform the simplest of tasks
      without 24/7 supervision. [Appellant] has not
      shown the discipline, professional growth,
      bearing, maturity or leadership required to be
      a Marine. Ultimately [Appellant] takes up
      [the] majority of the Chain of Command’s time
      dealing with her issues that result from noth-
      ing more than her failure to adapt to military
      life.
    The charges at issue in this case are symptomatic of the-
se deficiencies, and other performance issues, while not the
subject of criminal charges, were noted in her service record
book. In May 2013, two months after a counseling session for
failing to secure a promotion, and on the heels of a confron-
tation with SSgt Alexander about turning in a completed
Marine Corps Institute course, Appellant printed three cop-
ies of the words “[n]o weapon formed against me shall pros-
per,” on 8 1/2- x 11-inch paper in 28-point font or smaller.
Appellant cut the signs to size and taped one on the side of
her computer tower, one above her computer screen, and one
above her desk mailbox. The signs contained no additional
information and were large enough for those walking by Ap-
pellant’s desk and Marines seated at her workspace to read.
    SSgt Alexander discovered the signs and ordered Appel-
lant to remove them because “it wasn’t just her desk; it was
being shared by the other junior Marine.” According to Ap-
pellant, SSgt Alexander said that she wanted the signs re-
moved because she did not like their tone. Nothing in the

                              5
    United States v. Sterling, No. 15-0510/MC & 16-0223/MC
                      Opinion of the Court

record indicates that SSgt Alexander knew that the text was
Biblical in origin, and the NMCCA found that Appellant
never informed SSgt Alexander that the signs had either a
religious genesis or any religious significance to Appellant.
Sterling, 2015 CCA LEXIS 65, at *11, *14–15, 2015 WL
832587, at *4, *5, *6.
    Appellant failed to remove the signs, so SSgt Alexander
removed them herself. The next day, SSgt Alexander saw
that Appellant had replaced the signs and once more or-
dered Appellant to remove them. Appellant also failed to fol-
low this order, and SSgt Alexander again removed the signs.
In addition to failing to mention the religious nature of or
religion practice involved to SSgt Alexander, Appellant also
failed to request a religious accommodation to enable her to
display the signs. Sterling, 2015 CCA LEXIS 65, at *15,
2015 WL 832587, at *5.
    In August 2013, another of Appellant’s superiors, SSgt
Morris, noticed that Appellant was not wearing the proper
uniform, and he ordered her to wear “her service uniforms
as directed by the Commandant of the Marine Corps.” Ac-
cording to SSgt Morris, Appellant refused to obey the order
because Appellant said “she had a medical chit out there
stating she could not wear the uniform.” SSgt Morris spoke
with medical personnel at the base, who stated that Appel-
lant could wear the required uniform, and he again ordered
Appellant to change into the proper uniform. Appellant re-
fused. SSgt Morris then escorted Appellant to First Sergeant
(1stSgt) Robinson, who repeated the order for a third time.
Appellant again refused.
    On September 12, 2013, 1stSgt Robinson ordered Appel-
lant to report to the Pass and Identification building on
Sunday, September 15, 2013, from 4:00 PM until approxi-
mately 7:30 PM, to help distribute vehicle passes to families
of service members returning from deployment. According to
1stSgt Robinson, Appellant refused on the basis that “she
was on medication.” On September 13, 2013, 1stSgt Robin-
son informed Major (Maj) Flatley that he was having issues
with Appellant. Maj Flatley met with Appellant to “talk
some sense into her, reason with her, [and] to make sure
that she goes to her appointed place of duty on Sunday.”
During their conversation, Maj Flatley attempted to hand
the vehicle passes to Appellant. According to Maj Flatley,
Appellant refused to take the passes and stated that she
would not be there and would be sleeping. As a result, Maj


                              6
       United States v. Sterling, No. 15-0510/MC & 16-0223/MC
                         Opinion of the Court

Flatley called 1stSgt LaRochelle and directed her to begin
writing a charge sheet on Appellant.
    Maj Flatley gave Appellant another chance to comply
and again ordered Appellant to distribute passes on Sunday.
Maj Flatley asked whether Appellant understood the order
and would comply. According to Maj Flatley, Appellant said
that she understood the order but was not going to be there,
and instead was “going to take [her] meds and sleep and go
to church.” Maj Flatley explained to Appellant that distrib-
uting the passes did not conflict with church because the
passes did not need to be distributed until 4:00 PM on Sun-
day. On September 15, 2013, Appellant did not report to her
appointed place of duty.
    A special court-martial for charges resulting from the
above incidents commenced in January 2014. At trial, the
military judge cautioned Appellant about the dangers of ap-
pearing pro se. Nonetheless, Appellant elected to represent
herself, with limited assistance from defense counsel. As rel-
evant to the issues before this Court, during the middle of
trial and days after SSgt Alexander’s initial direct trial tes-
timony about Appellant’s failure to obey her orders to re-
move the signs, Appellant moved to dismiss those orders vio-
lations.
    Appellant argued for the first time that the orders to re-
move the signs were “unlawful under the grounds of [her]
religion” and that the Department of Defense (DoD) permit-
ted her to practice her religion “as long as it’s within good
order [and] discipline.” Appellant indicated that she was a
nondenominational Christian and that the quotations were
“a [B]ible scripture” and “of a religious nature.” Without ar-
gument or comment, Appellant also submitted DoDI 1300.17
(Jan. 22, 2014), which referenced RFRA and incorporated
RFRA’s language. 1 Appellant testified that because she was
a religious person, she posted the signs in the form of the
Christian Trinity to have the “protection of three” and to
serve as a “mental note.”
   Appellant also testified that the signs were “just purely
personal” and served as “a mental reminder to [her] when
[she came] to work .... [because she did not] know why these


   1 Prior to and during trial, the Department of Defense updated
DoDI 1300.17 (Jan. 22, 2014), providing greater reference to
RFRA. Appellant submitted the new instruction. See also DoDI
1300.17 (Feb. 10, 2009) (in place at the time of conduct at issue).

                                 7
       United States v. Sterling, No. 15-0510/MC & 16-0223/MC
                         Opinion of the Court

people [were] picking on [her].” Appellant stated that she
believed her situation with her command was unfair because
she was being picked on, including by SSgt Alexander. The
Government reasserted that the signs were ordered to be
taken down because they were distracting.
    The military judge held that SSgt Alexander’s orders
were lawful because they were “related to a specific military
duty,” SSgt Alexander was authorized to give them, and
each order required Appellant to do something immediately
or at a future time. Furthermore, the military judge held
that the orders were reasonably necessary to safeguard mili-
tary interests and good order and discipline because other
servicemembers could have seen the signs in the shared
workspace and the signs’ language, “although ... [B]iblical in
nature ... could easily be seen as contrary to good order and
discipline.” Finally, the military judge ruled that the orders
to remove the signs “did not interfere with [Appellant’s] pri-
vate rights or personal affairs.”
                    II. NMCCA DECISION

    On appeal, the NMCCA, held, inter alia, that SSgt Alex-
ander’s orders served a valid military purpose and were law-
ful. Sterling, 2015 CCA LEXIS 65, at *19, 2015 WL 832587,
at *6. The NMCCA held that the orders maintained good or-
der and discipline because (1) the signs could have fostered
religious divisions in the military workplace 2 and (2) the
signs expressed Appellant’s antagonism toward her com-
mand. While the court noted that the military judge’s factu-
al findings were meager and “fail[ed] to illuminate why the
military judge believed the signs[’] verbiage ‘could easily be
seen as contrary to good order and discipline,’” the NMCCA
nonetheless observed that the record adequately supported
the military judge’s conclusion that SSgt Alexander’s orders
were lawful. Sterling, 2015 CCA LEXIS 65, at *16–17, 2015
WL 832587, at *5.


   2  We reject this basis for concluding that the orders were law-
ful. While the military judge found that the signs were “[B]iblical
in nature,” that Appellant’s desk was shared with another Marine,
and that the signs were visible to Marines sitting at Appellant’s
desk, there is nothing in the record to establish that the signs
were readily identifiable as religious quotations, and thus, the no-
tion that they would foster religious divisions seems untenable.
Sterling, 2015 CCA LEXIS 65, at *17, 2015 WL 832587, at *6.


                                 8
    United States v. Sterling, No. 15-0510/MC & 16-0223/MC
                      Opinion of the Court

   Recognizing Appellant’s bellicose relationship with her
command, the NMCCA found that Appellant was “locked in
an antagonistic relationship with her superiors,” that the
signs could be interpreted as combative, and agreed with the
military judge that the signs could thus “easily be seen as
contrary to good order and discipline.” Sterling, 2015 CCA
LEXIS 65, at *19, 2015 WL 832587, at *6 (internal quotation
marks omitted).
    The NMCCA then concluded that Appellant was not en-
titled to a defense to the orders violations based on RFRA.
Sterling, 2015 CCA LEXIS 65, at *15, 2015 WL 832587, at
*5. The NMCCA held that the definition of religious exercise
required “the practice be ‘part of a system of religious be-
lief.’” Sterling, 2015 CCA LEXIS 65, at *14, 2015 WL
832587, at *5. Reasoning from this premise, it went on to
conclude that Appellant’s posting of signs containing a Bibli-
cal quotation in three places around her workstation did not
qualify as a religious exercise and that as a result, RFRA did
not apply. Sterling, 2015 CCA LEXIS 65, at *15, 2015 WL
832587, at *5. The court observed, “[w]hile [Appellant’s] ex-
planation at trial may invoke religion, there is no evidence
that posting signs at her workstation was an ‘exercise’ of
that religion in the sense that such action was ‘part of a sys-
tem of religious belief.’” Sterling, 2015 CCA LEXIS 65, at
*15–16, 2015 WL 832587, at *5. Moreover, the court noted
that Appellant never stated that the signs had a “religious
connotation” and never requested any religious accommoda-
tion for them. Sterling, 2015 CCA LEXIS 65, at *15, 2015
WL 832587, at *5. Rather, the court found that the record
demonstrated that Appellant had placed the signs as “per-
sonal reminders that those she considered adversaries could
not harm her.” Sterling, 2015 CCA LEXIS 65, at *15, 2015
WL 832587, at *5.
                     III. DISCUSSION

      A. The Orders to Remove the Signs Were Lawful
   “The legality of an order is a question of law that [this
Court] review[s] de novo.” United States v. Moore, 58 M.J.
466, 467 (C.A.A.F. 2003). This Court defers to a military
judge’s factual findings “unless they are clearly erroneous or
unsupported by the record.” United States v. Rader, 65 M.J.
30, 33 (C.A.A.F. 2007). The same deference applies to the
NMCCA’s factual findings. United States v. Tollinchi, 54
M.J. 80, 82 (C.A.A.F. 2000).


                              9
    United States v. Sterling, No. 15-0510/MC & 16-0223/MC
                      Opinion of the Court

    A lawful order “must relate to military duty, which in-
cludes all activities reasonably necessary to accomplish a
military mission, or safeguard or promote the morale, disci-
pline, and usefulness of members of a command and directly
connected with the maintenance of good order in the ser-
vice.” Manual for Courts-Martial, United States pt. IV, para.
14.c.(2)(a)(iv) (MCM). “[T]he dictates of a person’s con-
science, religion, or personal philosophy cannot justify or ex-
cuse the disobedience of an otherwise lawful order.” MCM
pt. IV, para. 14.c.(2)(a)(iv). “An order is presumed to be law-
ful, and the accused bears the burden of rebutting the pre-
sumption.” United States v. Ranney, 67 M.J. 297, 301–02
(C.A.A.F. 2009) (citation omitted) (internal quotation marks
omitted), overruled by United States v. Phillips, 74 M.J. 20,
22–23 (C.A.A.F. 2015). “To be lawful, an order must (1) have
a valid military purpose, and (2) be clear, specific, and nar-
rowly drawn.” Moore, 58 M.J. at 468 (citation omitted). “The
order must not conflict with the statutory or constitutional
rights of the person receiving the order.” MCM pt. IV, para.
14.c.(2)(a)(v).
    Appellant argues that there was no valid military pur-
pose in ordering her to remove the signs from her shared
work space. We disagree. The military judge’s and NMCCA’s
findings that Marines sharing or coming to the workspace
would be exposed to the signs are not clearly erroneous.
Sterling, 2015 CCA LEXIS 65, at *17, 2015 WL 832587, at
*6. SSgt Alexander was Appellant’s immediate supervisor
and testified that she wanted the signs removed because she
wished to keep the shared workspace clean.
    Importantly, the NMCCA’s findings that Appellant had a
“contentious” relationship with her command, “even prior” to
this incident, and that, in that context, posting the words
“[n]o weapon formed against me shall prosper” might be “in-
terpreted as combative” are also not clearly erroneous. 2015
CCA LEXIS 65, at *19, 2015 WL 832587, at *6 (internal
quotation marks omitted). Appellant herself conceded that
SSgt Alexander did not like the signs’ tone, and the NMCCA
found that Appellant did not tell SSgt Alexander that the
signs had a religious connotation. Sterling, 2015 CCA LEXIS
65, at *15, 2015 WL 832587, at *5. Given these circumstanc-
es and the complete absence of evidence that SSgt Alexander
either knew the signs were Biblical or ordered them re-
moved for that reason, Appellant has failed to rebut the pre-
sumption that the orders were lawful and necessary to fur-
ther the mission of Appellant’s unit by maintaining good
order and discipline. Without question, a junior Marine with
                              10
       United States v. Sterling, No. 15-0510/MC & 16-0223/MC
                         Opinion of the Court

a contentious relationship with her superiors posting com-
bative signs in a workspace could undermine good order and
discipline.
    Appellant fails to rebut the presumption of the lawful-
ness of the orders, and because she fails to establish a prima
facie RFRA case, she also lacks a defense for failing to follow
the orders.
                            B. RFRA 3
    RFRA provides that the “Government shall not substan-
tially burden a person’s exercise of religion even if the bur-
den results from a rule of general applicability.” 42 U.S.C. §
2000bb-1(a). As amended by the Religious Land Use and In-
stitutionalized Persons Act of 2000 (RLUIPA), “‘exercise of
religion’” is broadly defined as “any exercise of religion,
whether or not compelled by, or central to, a system of reli-
gious belief.” 42 U.S.C. § 2000bb-2 (4) (cross-referencing “ex-
ercise of religion” as defined in RLUIPA, 42 U.S.C. § 2000cc-
5(7)(A)). As we noted above, RFRA applies to the military.
See supra p. 3.
   “Our review of the requirements of [RFRA], although
largely factual in nature, presents mixed questions of fact
and law.” United States v. Meyers, 95 F.3d 1475, 1482 (10th
Cir. 1996). This Court reviews legal questions, including the
application of RFRA, de novo. See United States v.
McElhaney, 54 M.J. 120, 125 (C.A.A.F. 2000). Factual find-
ings are reviewed for clear error. United States v. Gallagher,
66 M.J. 250, 253 (C.A.A.F. 2008).
    Appellant argues that the NMCCA erred in its rationale
for declining to afford her a RFRA defense to the orders vio-
lations and that the order to remove the signs substantially
burdened her sincerely held religious beliefs. In sum, we
agree that the NMCCA erred in defining “religious exercise”
for purposes of RFRA. But while the posting of signs was
claimed to be religiously motivated at least in part and thus
falls within RFRA’s expansive definition of “religious exer-
cise,” Appellant has nonetheless failed to identify the sin-
cerely held religious belief that made placing the signs im-

   3  Given Appellant’s assertion at trial that the orders violated
her religion, the submission of an order that cited RFRA, and the
raising of the issue before the NMCCA, we reject the Govern-
ment’s argument that Appellant waived or forfeited her right to
assert her RFRA claim on appeal to this Court. Hankins v. Lyght,
441 F.3d 96, 104 (2d Cir. 2006).

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       United States v. Sterling, No. 15-0510/MC & 16-0223/MC
                         Opinion of the Court

portant to her exercise of religion or how the removal of the
signs substantially burdened her exercise of religion in some
other way. We decline Appellant’s invitation to conclude that
any interference at all with a religiously motivated action
constitutes a substantial burden, particularly where the
claimant did not bother to either inform the government
that the action was religious or seek an available accommo-
dation.
               1. Religious Exercise Under RFRA
    A RFRA inquiry is triggered by a “religious exercise.”
The NMCCA’s holding that RFRA’s definition of “‘religious
exercise’ requires the practice be ‘part of a system of reli-
gious belief’” was too narrow. 4 Sterling, 2015 CCA LEXIS
65, at *14, 2015 WL 832587, at *5 (quoting 42 U.S.C. §
2000cc-5(7)(A)). RFRA defines “‘religious exercise’” as “any
exercise of religion, whether or not compelled by, or central
to, a system of religious belief.” 42 U.S.C. § 2000bb-2(4) (em-
phasis added) (cross-referencing 42 U.S.C. § 2000cc-5(7)(A)).
A “‘religious exercise’” under RFRA “involves ‘not only belief
and profession but the performance of (or abstention from)
physical acts’ that are ‘engaged in for religious reasons.’”
Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2770
(2014) (quoting Emp’t Div., Dep’t of Human Res. of Or. v.
Smith, 494 U.S. 872, 877 (1990)).
    On the one hand, there was no indication on the signs
that the quote was Biblical, and there was no testimony that
Appellant informed SSgt Alexander or anyone else that she
posted the signs for religious purposes until trial. On the
other     hand,     Appellant      stated    she     was      a
“[n]ondenominational” Christian and that the signs “are a
[B]ible scripture” of “a religious nature.” Appellant also tes-
tified that the signs invoked the Trinity and fortified her
against those who were picking on her. Appellant stated
that she was motivated to post the signs in order to gain the
“protection” of the “[T]rinity,” because she is “a religious
person.” Given RFRA’s broad definition of religious exercise,
Appellant’s posting of signs could qualify.
   However, this does not answer the altogether different
questions whether (1) the conduct was based on a sincerely


   4  It is entirely possible, given the remainder of its conclusions,
that the NMCCA intended to hold that posting the signs was not
based on a sincerely held religious belief. But that is not what it
said.

                                 12
    United States v. Sterling, No. 15-0510/MC & 16-0223/MC
                      Opinion of the Court

held religious belief, as opposed to being a post-hoc justifica-
tion for posting signs that were combative in nature and vio-
lating orders to remove them, or (2) the orders to remove the
signs substantially burdened Appellant’s religious beliefs.
                 2. Prima Facie RFRA Case
    To establish a prima facie RFRA defense, an accused
must show by a preponderance of the evidence that the gov-
ernment action (1) substantially burdens (2) a religious be-
lief (3) that the defendant sincerely holds. See, e.g., Holt v.
Hobbs, 135 S. Ct. 853, 862 (2015); United States v. Zimmer-
man, 514 F.3d 851, 853 (9th Cir. 2007); Kikumura v. Hurley,
242 F.3d 950, 960 (10th Cir. 2001). If a claimant establishes
a prima facie case, the burden shifts to the government to
show that its actions were “the least restrictive means of
furthering a compelling governmental interest.” United
States v. Quaintance, 608 F.3d 717, 719–20 (10th Cir. 2010).
Because Appellant fails to establish a prima facie case, the
burden does not shift to the Government in this case.
             a. Sincerely Held Religious Belief
    While religious conduct triggers a RFRA inquiry, RFRA
only protects actions that are “sincerely based on a religious
belief.” See Holt, 135 S. Ct. at 862. Determining sincerity is
a factual inquiry within the trial court’s authority and com-
petence, Korte v. Sebelius, 735 F.3d 654, 683 (7th Cir. 2013),
and “the [claimant’s] ‘sincerity’ in espousing that practice is
largely a matter of individual credibility,” Tagore v. United
States, 735 F.3d 324, 328 (5th Cir. 2013). Courts are highly
deferential    to    claimants      in  evaluating    sincerity,
Moussazadeh v. Texas Dep’t of Criminal Justice, 703 F.3d
781, 792 (5th Cir. 2012), but may still conduct meaningful
reviews of sincerity. See Hobby Lobby Stores, 134 S. Ct. at
2774 n.28; Quaintance, 608 F.3d at 721–23; United States v.
Manneh, 645 F. Supp. 2d 98, 112–13 (E.D.N.Y. 2008) (noting
that courts are “seasoned appraisers of the ‘motivations’ of
parties” and can observe the claimant’s “demeanor during
direct and cross-examination”) (citation omitted) (internal
quotation marks omitted); Zimmerman, 514 F.3d at 854
(“The district court should hear directly from [the claimant],
as his credibility and demeanor will bear heavily on whether
his beliefs are sincerely held.”). “Neither the government nor
the court has to accept the defendants’ mere say-so.” United
States v. Bauer, 84 F.3d 1549, 1559 (9th Cir. 1996); see also
Int’l Soc’y for Krishna Consciousness, Inc. v. Barber, 650
F.2d 430, 441 (2d Cir. 1981) (“[A]n adherent’s belief would


                              13
    United States v. Sterling, No. 15-0510/MC & 16-0223/MC
                      Opinion of the Court

not be ‘sincere’ if he acts in a manner inconsistent with that
belief … or if there is evidence that the adherent materially
gains by fraudulently hiding secular interests behind a veil
of a religious doctrine.”) (internal citations omitted); cf.
United States v. Messinger, 413 F.2d 927, 928–30 (2d Cir.
1969) (referencing a Justice Department recommendation
that a defendant-draftee’s “long delay in asserting his con-
scientious objector claim” was evidence of religious insinceri-
ty where his claim came two years after his Selective Service
registration). To be certain, in evaluating sincerity a court
may not question “whether the petitioner ... correctly per-
ceived the commands of [his or her] faith.” Thomas v. Review
Bd., 450 U.S. 707, 716 (1981). Nor does a court “differentiate
among bona fide faiths.” See Cutter v. Wilkinson, 544 U.S.
709, 723 (2005).
    In this case, the record does not clearly address whether
Appellant’s conduct was based on a “sincerely held religious
belief” or motivated by animosity toward her chain of com-
mand. While Appellant testified that the signs were reli-
gious, arranged to mimic the Trinity, and were “personal .…
mental reminder[s],” she also only raised religion as an ex-
planation for the signs in the middle of trial, and some of her
testimony arguably indicates that the signs were actually a
response to contentious relationships at work, including
with SSgt Alexander. Moreover, the NMCCA’s factual anal-
ysis, which is not clearly erroneous, emphasizes this nonre-
ligious basis for the signs. Cf. supra pp. 9, 12 note 4.
    Yet, whether her conduct was based on a sincerely held
religious belief is an intensely fact-based inquiry, see Korte,
735 F.3d at 683, and is beyond the purview of this Court.
United States v. Crider, 22 C.M.A. 108, 110–11, 46 C.M.R.
108, 110–11 (1973). We could simply hold that it was her
burden to affirmatively establish the sincerity of her belief
by a preponderance of the evidence at trial and that she
failed to do so. See Quaintance, 608 F.3d at 719–23. Howev-
er, because we can resolve the case on the basis of Appel-
lant’s failure to establish that the orders to remove the signs
were a substantial burden, we will instead assume arguendo
that her conduct was based on a sincerely held religious be-
lief.
                   b. Substantial Burden
   Early drafts of RFRA prohibited the government from
placing a “burden” on religious exercise, but Congress added
the word “substantially” before passage to clarify that only
some burdens would violate the act. 139 Cong. Rec. S14352

                              14
       United States v. Sterling, No. 15-0510/MC & 16-0223/MC
                         Opinion of the Court

(daily ed. Oct. 26, 1993) (statements of Sen. Kennedy and
Sen. Hatch). RFRA does not define “substantially burden,”
and the federal appellate courts provide several different
formulations. Contrary to Appellant’s argument, not every
interference with conduct motivated by a sincere religious
belief constitutes the substantial burden that RFRA prohib-
its.
    To be sure, all courts agree that a substantial burden ex-
ists where a government action places “‘substantial pressure
on an adherent to modify [her] behavior and to violate [her]
beliefs.’” Kaemmerling v. Lappin, 553 F.3d 669, 678 (D.C.
Cir. 2008) (quoting Thomas, 450 U.S. at 718); cf. Sherbert v.
Verner, 374 U.S. 398, 403–04 (1963). 5 But no court interpret-
ing RFRA has deemed that any interference with or limita-
tion upon a religious conduct is a substantial interference
with the exercise of religion. Instead, and contrary to the
dissent’s understanding, courts have focused on the subjec-
tive importance of the conduct to the person’s religion, as
well as on “whether the regulation at issue ‘force[d claim-
ants] to engage in conduct that their religion forbids or …
prevents them from engaging in conduct their religion re-
quires.’” Mahoney v. Doe, 642 F.3d 1112, 1121 (D.C. Cir.
2011) (quoting Henderson v. Kennedy, 253 F.3d 12, 16 (D.C.

   5  However, aside from this point of agreement, there is not
precise conformity within the federal circuits on the exact parame-
ters of what constitutes a “substantial burden.” See, e.g.,
Sossamon v. Lone Star State of Texas, 560 F.3d 316, 332 (5th Cir.
2009) (“A burden is substantial if ‘it truly pressures the adherent
to significantly modify his religious behavior and significantly vio-
late his religious beliefs.’”) (citation omitted) (second emphasis
added); Washington v. Klem, 497 F.3d 272, 280 (3d Cir. 2007)
(“For the purposes of RLUIPA, a substantial burden exists where
… the government puts substantial pressure on an adherent to
substantially modify his behavior and to violate his beliefs.”) (em-
phasis added); Midrash Sephardi, Inc. v. Town of Surfside, 366
F.3d 1214, 1227 (11th Cir. 2004) (“The combined import of these
articulations leads us to the conclusion that a ‘substantial burden’
must place more than an inconvenience on religious exercise; a
‘substantial burden’ is akin to significant pressure which directly
coerces the religious adherent to conform his or her behavior ac-
cordingly.”) (emphasis added); Ford v. McGinnis, 352 F.3d 582,
593–94 (2d Cir. 2003) (framing inquiry as whether the belief inter-
fered with by the government was “considered central or im-
portant to [petitioner’s] practice of Islam.”). The order to remove
signs in the instant case does not constitute a substantial burden
under any of these formulations.

                                 15
    United States v. Sterling, No. 15-0510/MC & 16-0223/MC
                      Opinion of the Court

Cir. 2001)). In other words, having restraints placed on be-
havior that is religiously motivated does not necessarily
equate to either a pressure to violate one’s religious beliefs
or a substantial burden on one’s exercise of religion. We
agree with the D.C. Circuit that:
       One can conceive of many activities that are
       not central or even important to a religion, but
       nevertheless might be religiously motivated….
       To make religious motivation the critical focus
       is, in our view, to read out of RFRA the condi-
       tion that only substantial burdens on the exer-
       cise of religion trigger the compelling interest
       requirement.
Henderson, 253 F.3d at 17.
    Of course, to determine whether a prima facie case has
been established, courts do not question “whether the peti-
tioner … correctly perceived the commands of [his or her]
faith.” Thomas, 450 U.S. at 716. But while we will not assess
the importance of a religious practice to a practitioner’s ex-
ercise of religion or impose any type of centrality test, a
claimant must at least demonstrate “an honest belief that
the practice is important to [her] free exercise of religion” in
order to show that a government action substantially bur-
dens her religious exercise. Sossamon, 560 F.3d at 332; see
also Ford, 352 at 593–94. A substantial burden is not meas-
ured only by the secular costs that government action im-
poses; the claimant must also establish that she believes
there are religious costs as well, and this should be clear
from the record. See Ira C. Lupu, Hobby Lobby and the Du-
bious Enterprise of Religious Exemptions, 38 Harv. J.L. &
Gender 35, 80 (2015); cf. Abdulhaseeb v. Calbone, 600 F.3d
1301, 1315 (10th Cir. 2010).
    This requirement is not novel; language in central Su-
preme Court opinions on the question of substantial burden
affirms that the adherent’s subjective belief in the im-
portance of a practice to her religion is relevant to the sub-
stantial burden inquiry. See, e.g., Holt, 135 S. Ct. at 862
(“Here, the religious exercise at issue is the growing of a
beard, which petitioner believes is a dictate of his religious
faith, and the Department does not dispute the sincerity of
petitioner’s belief…. Because the grooming policy puts peti-
tioner to this choice, it substantially burdens his religious
exercise.”) (internal citation omitted); Hobby Lobby, 134 S.
Ct. at 2764–65, 2778 (noting that the claimants have a sin-
cere religious belief that life begins at conception and “that

                              16
    United States v. Sterling, No. 15-0510/MC & 16-0223/MC
                      Opinion of the Court

providing the coverage demanded by the HHS regulations is
connected to the destruction of an embryo in a way” that
goes “‘against [their] moral conviction to be involved in the
termination of human life’”) (internal citations omitted);
Yoder, 406 U.S. at 218 (holding that secondary schooling
substantially interferes with the Amish religion because it
“contravenes the basic religious tenets and practices of the
Amish faith, both as to the parent and the child”).
    In contrast, courts have found that a government prac-
tice that offends religious sensibilities but does not force the
claimant to act contrary to her beliefs does not constitute a
substantial burden. See Navajo Nation v. U.S. Forest Serv.,
535 F.3d 1058, 1070 (9th Cir. 2008). “A burden is not sub-
stantial if ‘it merely prevents the adherent from either en-
joying some benefit that is not otherwise generally available
or acting in a way that is not otherwise generally allowed.’”
Sossamon, 560 F.3d at 332. Moreover, “[a]n inconsequential
or de minimis burden on religious practice does not [consti-
tute a substantial burden], nor does a burden on activity un-
important to the adherent’s religious scheme.” Kaemmerling,
553 F.3d at 678; see also Midrash Sephardi, Inc., 366 F.3d at
1227; Abdullah, 600 F.3d at 1321 (recognizing that not every
“presentation of a meal an inmate considers impermissible
constitutes a substantial burden on an inmate’s religious ex-
ercise”); Ford, 352 F.3d at 593–94 (focusing on appellant’s
subjective belief that the exercise at issue was “critical to his
observance as a practicing Muslim” in evaluating substan-
tial burden).
    Appellant has failed to establish that the orders to re-
move the signs substantially burdened her religious beliefs.
While Appellant seeks to cast the substantial burden as
caused by the choice between obeying the orders to remove
the signs and potentially facing a court-martial, this logic is
flawed, as it presumes that taking down the signs consti-
tutes a substantial burden — a burden imposing both secu-
lar and religious costs. This is the very legal question to be
decided. We reject the argument that every interference
with a religiously motivated act constitutes a substantial
burden on the exercise of religion. See Kaemmerling, 553
F.3d at 679 (finding “as true the factual allegations that [the
claimant’s] beliefs are sincere and of a religious nature —
but not the legal conclusion, cast as a factual allegation, that
[their] religious exercise is substantially burdened”).
   In this case, Appellant did not present any testimony
that the signs were important to her exercise of religion, or

                               17
    United States v. Sterling, No. 15-0510/MC & 16-0223/MC
                      Opinion of the Court

that removing the signs would either prevent her “‘from en-
gaging in conduct [her] religion requires,’” Mahoney, 642
F.3d at 1121 (citation omitted), or cause her to “abandon[]
one of the precepts of her religion,” Sherbert, 374 U.S. at
404. While Appellant testified that posting the signs was re-
ligiously motivated in part, she did not testify that she be-
lieved it is any tenet or practice of her faith to display signs
at work. See Wilson v. James, 139 F. Supp. 3d 410, 424–25
(D.D.C. 2015). Nor does Appellant’s testimony indicate how
complying with the order to remove the signs pressured her
to either change or abandon her beliefs or forced her to act
contrary to her religious beliefs. See Kaemmerling, 553 F.3d
at 678–79; cf. Hankins, 441 F.3d at 104 (detailing the conse-
quences of failing to assert or establish at trial that an ac-
tion substantially burdens a religious exercise). Although
Appellant did not have to provide evidence that posting
signs in her shared workspace was central to her belief sys-
tem, she did have to provide evidence indicating an honest
belief that “the practice [was] important to [her] free exer-
cise of religion.” See Sossamon, 560 F.3d at 332. Contrary to
Appellant’s assertions before this Court, the trial evidence
does not even begin to establish how the orders to take down
the signs interfered with any precept of her religion let alone
forced her to choose between a practice or principle im-
portant to her faith and disciplinary action.
    “[C]ourts must take adequate account of the burdens a
requested accommodation may impose on nonbeneficiaries.”
See Cutter, 544 U.S.at 720. In evaluating whether taking
down the signs constituted a substantial burden on her ex-
ercise of religion, we will not ignore two additional salient
facts. First, Appellant never told the person who ordered her
to take down the signs — which were not, like the wearing of
a hijab, obviously religious to most, see E.E.O.C. v. Aber-
crombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2033 n.3 (2015)
— that they even had a religious connotation, let alone that
they were important to her religion. Requiring that minimal
step before concluding that an order imposes a substantial
burden is certainly not onerous or unreasonable in the mili-
tary context where orders are presumed to be lawful, adher-
ence to orders is integral to the military performing its mis-
sion, and the military force is made up of diverse individuals
with diverse backgrounds — with no guarantee those
charged with command have any special expertise in reli-
gion. Permitting, as the dissent proposes, military members
to disobey orders now and explain why later (much later, as
in mid-trial in the instant case) makes no sense. It is certain

                              18
    United States v. Sterling, No. 15-0510/MC & 16-0223/MC
                      Opinion of the Court

that “the military is, by necessity, a specialized society,”
Parker v. Levy, 417 U.S. 733, 743 (1974), and “to accomplish
its mission the military must foster instinctive obedience,
unity, commitment, and esprit de corps,” Goldman v. Wein-
berger, 475 U.S. 503, 507 (1986). As we recently concluded:
      “‘[T]he military must insist upon a respect for
      duty and a discipline without counterpart in
      civilian life. The laws and traditions governing
      that discipline have a long history [and] are
      founded on unique military exigencies as pow-
      erful now as in the past.’” United States v.
      Heyward, 22 M.J. 35, 37 (C.M.A. 1968) (quot-
      ing Schlesinger v. Councilman, 420 U.S. 738,
      757 (1975)). Unlike his civilian counterparts,
      “‘it is [the servicemember’s] primary business
      … to fight or be ready to fight wars should the
      occasion arise.’” [Levy, 417 U.S. at 744 (citation
      omitted)]. In order to achieve this objective,
      “[n]o question can be left open as to the right to
      command [by a superior], or the duty [to obey
      by a subordinate].” In re Grimley, 137 U.S. 147,
      153 (1890); accord [Goldman, 475 U.S. at 507]
      (1986) (noting that “the military must foster
      instinctive obedience”).
United States v. Caldwell, 75 M.J. 276, 281–82
(C.A.A.F. 2016) (alterations in original).
    Second, and relatedly, we will not overlook the reality
that DoD and Naval regulations permitted Appellant to re-
quest an accommodation for any rule or regulation that she
believed substantially burdened her religion, but required
that she adhere to and follow orders while awaiting a de-
termination on the matter. See DoDI 1300.17 para. 4(g);
SECNAVINST 1730.8B CH-1 para. 5(a). Appellant is
charged with knowledge of both general orders, and not only
did she fail to inform her superiors about the religious sig-
nificance of the signs from her perspective, she did not re-
quest an accommodation.
    We recognize that RFRA does not itself contain an ex-
haustion requirement and that at least one federal appellate
court has held that an individual need not request an ex-
emption to invoke RFRA, even if a system for doing so is in
place. See Oklevueha Native Am. Church of Haw., Inc. v.
Holder, 676 F.3d 829, 838 (9th Cir. 2012). But we agree with
those courts that have held that an option to request an ac-
commodation “may eliminate burdens on religious exercise
or reduce those burdens to de minimis acts of administrative

                             19
    United States v. Sterling, No. 15-0510/MC & 16-0223/MC
                      Opinion of the Court

compliance that are not substantial for RFRA purposes.” Lit-
tle Sisters of the Poor Home for the Aged, Denver, Colo. v.
Burwell, 794 F.3d 1151, 1178 (10th Cir. 2015), vacated and
remanded sub nom. Zubik v. Burwell, 136 S. Ct. 1557 (2016)
(per curiam); Priests for Life v. U.S. Dep’t of Health and
Human Serv., 772 F.3d 229, 249–52 (D.C. Cir. 2014), vacat-
ed and remanded sub nom. Zubik, 136 S. Ct. 1557.
    Appellant could have requested an exemption from her
chain of command to post the signs, and she could have ap-
pealed a denial of the request to the Commandant of the
Marine Corps. See SECNAVINST 1730.8B CH-1 paras. 5.c,
5.d. The relevant instruction requires commanders to bal-
ance requests against considerations such as military readi-
ness and unit cohesion, and commanders must reply to re-
quests within one week. Id. at paras. 5, 5.c. If military
necessity precludes honoring a request, commanders are re-
quired to “seek reasonable alternatives.” Id. at para. 11.d.
    While Appellant’s failure to seek an exemption does not
prevent her from invoking RFRA, the accommodation pro-
cess is important for two reasons. First, the established and
expeditious option to request an accommodation illustrates
the importance that the military places both on respecting
the religious beliefs of its members and avoiding substantial
burdens on religion where possible. Second, by potentially
delaying an accommodation for only a short period of time,
the accommodation process interposes a de minimis ministe-
rial act, reducing any substantial burden otherwise threat-
ened by an order or regulation of general applicability, while
permitting the military mission to continue in the interim.
This consideration is crucial in the military context, as the
very lifeblood of the military is the chain of command. Unit-
ed States v. Priest, 21 C.M.A. 564, 570, 45 C.M.R. 338, 344
(1972) (“The armed forces depend on a command structure
that at times must commit men [and women] to combat, not
only hazarding their lives but ultimately involving the secu-
rity of the Nation itself.”); see also Caldwell, 75 M.J. at 282.
   Because Appellant has not established a prima facie
case, this Court need not evaluate whether the orders at is-
sue in this case were the least restrictive means of further-
ing a compelling government interest.
                      IV. JUDGMENT

   The decision of the United States Navy-Marine Corps
Court of Criminal Appeals is affirmed.

                              20
    United States v. Sterling, No. 15-0510/MC & 16-0223/MC


   Judge OHLSON, dissenting.
    In my view, the Religious Freedom Restoration Act
(RFRA), 42 U.S.C. §§ 2000bb–2000bb-4 (2012), provides the
men and women of our nation’s armed forces with the
presumptive right to fully, openly, and spontaneously
engage in religious exercise. This right extends to sincere
religious conduct that is not specifically required by, or
deemed by judges to be important to, the tenets of a
servicemember’s faith. Further, servicemembers who are
court-martialed for sincere religious conduct may invoke the
protections afforded by RFRA even if they did not obtain the
permission of the Government before engaging in that
conduct, and even if they did not contemporaneously inform
their chain-of-command that their actions were religious in
nature.
   I conclude that the majority’s disposition of the instant
case is not consistent with these rights under RFRA.
Moreover, I conclude that the majority’s analysis of the
underlying legal issue raises the prospect that other
servicemembers in the future may be subjected to conviction
at court-martial for merely engaging in religious exercise
that is entitled to protection under the statute. Therefore, I
must respectfully dissent.
                           I. Overview
    To be clear at the outset, RFRA does not give members of
the military carte blanche to do whatever they please,
whenever they please, simply because they cloak their
actions in the garb of religion. To the contrary, the
preservation of good order and discipline in the military
often serves as a legitimate and powerful governmental
interest, and in appropriate instances, the interests of the
individual must yield to the interests of the whole. However,
the mere talismanic invocation of “good order and discipline”
must not be allowed to curtail the religious liberty of our
nation’s servicemembers when the government’s actions are
neither warranted nor statutorily authorized.
    In the instant case, Lance Corporal (LCpl) Sterling
testified at trial that she posted in her workspace three
strips of paper that contained a paraphrase of a biblical
       United States v. Sterling, No. 15-0510/MC & 16-0223/MC
                     Judge OHLSON, dissenting

passage. 1 She made clear that she did so because the signs
were religious in nature, were evocative of the Trinity, and
were intended to provide her with encouragement and
comfort in a time of personal difficulty. In response to her
conduct, LCpl Sterling’s noncommissioned officer (NCO)
ordered her to take down the signs, and when the junior
Marine declined to do so, the NCO removed the signs
herself. LCpl Sterling was then court-martialed for, inter
alia, disobeying the NCO’s order.
    Under these circumstances, LCpl Sterling was entitled to
have the United States Navy-Marine Corps Court of
Criminal Appeals (CCA) analyze her conviction under the
legal construct set forth in RFRA by Congress. 2 However, as
both the Government and the majority concede, the CCA
applied a fundamentally flawed definition of what
constitutes religious conduct under RFRA. The CCA’s
decision thus deprived LCpl Sterling of a properly conducted
review of her case under Article 66(c), Uniform Code of
Military Justice, 10 U.S.C. § 866 (2012), which states that a
CCA may affirm “only such findings of guilt … as it finds
correct in law and fact.” The majority’s decision to affirm
this case on other grounds only serves to compound this
problem.
    I readily concede that even if the CCA had applied the
correct legal standard in this case, LCpl Sterling may not
have prevailed on the merits. It is not enough for a
servicemember to engage in activity with religious
underpinnings; the servicemember’s actions must be a
“sincere” expression of religious belief. Therefore, if a
servicemember seeks to use less-than-genuine religious
beliefs as a pretext for inappropriate conduct, or even if a

    1 The printed phrase was: “No weapon formed against me
shall prosper.” This is a paraphrase of the biblical passage stating,
“No weapon that is formed against thee shall prosper.” Isaiah
54:17 (King James).
   2 The majority devotes significant attention to the numerous
leadership challenges presented by Appellant. However, RFRA
does not predicate its applicability on the obedience, punctuality,
demeanor, or performance of the person engaging in religious
exercise.


                                 2
    United States v. Sterling, No. 15-0510/MC & 16-0223/MC
                  Judge OHLSON, dissenting

servicemember is sincerely religious but has mixed motives
for acting upon those beliefs—such as invoking a biblical
passage in order to engage in a passive-aggressive display of
contempt for military leadership—the servicemember’s
conduct will not pass muster under RFRA. See Burwell v.
Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2774 n.28 (2014)
(“[P]retextual assertion[s] of … religious belief[s] … fail
[under RFRA].”); see also United States v. Quaintance, 608
F.3d 717, 722 (10th Cir. 2010) (rejecting RFRA defense due
to an ulterior, secular motive). Indeed, there is evidence in
the record to suggest that the latter scenario may be
precisely what we are confronted with in the instant case.
Importantly, however, as the majority also recognizes, the
CCA failed to examine this fundamental question, and this
Court does not have the statutory fact-finding authority to
do so on its own.
    Unfortunately, instead of remanding this case so that it
can be properly adjudicated by the court below, the majority
instead has chosen to impose a stringent, judicially made
legal standard in this and future religious liberty cases that
is not supported by the provisions of RFRA. Contrary to the
majority’s holding, the plain language of the statute does not
empower judges to curtail various manifestations of sincere
religious belief simply by arbitrarily deciding that a certain
act was not “important” to the believer’s exercise of religion.
Neither does the statute empower judges to require a
believer to ask of the government, “Mother, may I?” before
engaging in sincere religious conduct. And further, nowhere
in the statute are servicemembers required to inform the
government of the religious nature of their conduct at the
time they engage in it. In sum, the majority opinion imposes
a legal regime that conflicts with the provisions of RFRA,
contradicts the intent of Congress, and impermissibly chills
the religious rights of our nation’s servicemembers.
                           II. The Law
   As stated in the statute itself, RFRA prohibits the
“Government [from] substantially burden[ing] a person’s
exercise of religion[,] even if the burden results from a rule
of general applicability,” unless the government can
“demonstrate[] that application of the burden to the
person—(1) is in furtherance of a compelling governmental


                              3
    United States v. Sterling, No. 15-0510/MC & 16-0223/MC
                  Judge OHLSON, dissenting

interest; and (2) is the least restrictive means of furthering
that compelling governmental interest.” 42 U.S.C. § 2000bb-
1(a), (b). As amended by its sister statute, the Religious
Land Use and Institutionalized Persons Act of 2000
(RLUIPA), RFRA covers “any [sincere] exercise of religion,
whether or not compelled by, or central to, a system of
religious belief.” 42 U.S.C. § 2000cc-5(7)(A) (emphasis
added); see also 42 U.S.C. § 2000bb-2(4) (importing RLUIPA
definition to RFRA); Hobby Lobby, 134 S. Ct. at 2774 n.28
(“To qualify for RFRA’s protection, an asserted belief must
be ‘sincere’ ….”). This plain language provides a very broad
aperture through which to view the type of religious conduct
that is protected from governmental infringement. Indeed,
RFRA guarantees Americans a degree of religious liberty
that extends significantly beyond the rights afforded by the
First Amendment. See Holt v. Hobbs, 135 S. Ct. 853, 859–60
(2015) (noting that “Congress enacted RFRA in order to
provide greater protection for religious exercise than is
available under the First Amendment”); see generally 42
U.S.C. § 2000bb-(b).
    As the majority acknowledges, there is no question that
the protections afforded by RFRA apply with full effect to
our nation’s armed forces. RFRA explicitly states that it
applies to the “government,” which is then statutorily
defined as including “a branch, department, agency,
instrumentality, and official … of the United States.” 42
U.S.C. § 2000bb-2(1). This certainly includes the military.
See, e.g., Singh v. Carter, Civil Action No. 16-399 (BAH),
2016 U.S. Dist. LEXIS 26990, at *24–25, 2016 WL 837924,
at *6 (D.D.C. Mar. 3, 2016); Singh v. McHugh, 109 F. Supp.
3d 72 (D.D.C. 2015); Rigdon v. Perry, 962 F. Supp. 150, 160
(D.D.C. 1997). Even if this fact were not sufficiently obvious
on the statute’s face, RFRA’s legislative history would dispel
any remaining doubt. Congress was crystalline in its
expectation that RFRA would apply to the military. S. Rep.
No. 103-111, at 12 (1993) (“Under the unitary standard set
forth in [RFRA], courts will review the free exercise claims
of military personnel under the compelling governmental
interest test.”); H.R. Rep. No. 103-88 (1993) (“Pursuant to
[RFRA], the courts must review the claims of … military
personnel under the compelling governmental interest


                              4
       United States v. Sterling, No. 15-0510/MC & 16-0223/MC
                     Judge OHLSON, dissenting

test.”). It therefore is without question that the military falls
squarely within RFRA’s embrace. 3
    III. How RFRA Generally Applies to the Military
                       Justice System
    RFRA’s practical application in the military justice
system is straightforward. When a convening authority
refers charges against an accused based on activity that
constitutes religious exercise, the accused may invoke RFRA
to prevent prosecution and/or conviction. 4 See 42 U.S.C. §
2000bb-1(c) (“A person whose religious exercise has been
burdened in violation of [RFRA] may assert that violation as
a … defense in a judicial proceeding and obtain appropriate
relief against a government.”); see also United States v.
Christie, Nos. 14-10233, 14-10234, 2016 U.S. App. LEXIS
10748, at *12, 2016 WL 3255072, at *4 (9th Cir. June 14,
2016) (stating that “RFRA gives each person a statutory
right not to have his sincere religious exercise substantially
burdened by the government”). In this context, a
servicemember seeking the protections afforded by RFRA
must initially demonstrate that he or she was engaging in,
or seeking to engage in, religious exercise. 42 U.S.C. §

    3 This is further evidenced by Department of Defense,
Instruction 1300.17, which addresses the “[a]ccommodation of
[r]eligious [p]ractices [w]ithin the [m]ilitary” and explicitly
incorporates RFRA. Dep’t of Defense (DoD), Instr. 1300.17,
Accommodation of Religious Practices Within the Military
Services, para. 4.e.(1) (Feb. 10, 2009, Incorporating Change 1, Jan.
22, 2014) (“[R]equests for religious accommodation from a military
policy, practice, or duty that substantially burdens a Service
member’s exercise of religion may be denied only when the
military policy, practice, or duty: (a) Furthers a compelling
governmental interest; [and] (b) Is the least restrictive means of
furthering that compelling governmental interest.”).
   4   The assertion by the Government that a servicemember
must utter the mantra “Religious Freedom Restoration Act” at
trial in order to be afforded the protections of that statute is
utterly unfounded. Not only is “RFRA … the law regardless of
whether parties mention it,” see Muslim v. Frame, 897 F. Supp.
215, 216 (E.D. Pa. 1995), but LCpl Sterling unmistakably argued
that the order was unlawful because of her religious beliefs. She
even went as far as to submit the DoD Instruction that
incorporates RFRA’s framework.


                                 5
    United States v. Sterling, No. 15-0510/MC & 16-0223/MC
                  Judge OHLSON, dissenting

2000bb-1(a). Religious exercise “involves ‘not only belief and
profession but the performance of (or abstention from)
physical acts’ that are ‘engaged in for religious reasons.’”
Hobby Lobby, 134 S. Ct. at 2769–70 (citation omitted). A
servicemember does not need to prove that his or her
conduct was either central to, or compelled by, his or her
faith. Id. at 2770. Rather, a servicemember need only prove
that his or her conduct was sincerely inspired by religion. Id.
at 2774; see also Jolly v. Coughlin, 76 F.3d 468, 476 (2d Cir.
1996) (“[S]crutiny [under RFRA] extends only to whether a
claimant sincerely holds a particular belief and whether the
belief is religious in nature. An inquiry any more intrusive
would be inconsistent with our nation’s fundamental
commitment to individual religious freedom ….”) (internal
citation omitted); United States v. Manneh, 645 F. Supp. 2d
98, 111 (E.D.N.Y. 2008) (noting that the “[s]incerity analysis
‘provides a rational means of differentiating between those
beliefs that are held as a matter of conscience and those that
are animated by motives of deception and fraud’”) (citation
omitted).
    A servicemember must next prove that his or her
religious exercise was “substantially burden[ed]” by the
government. 42 U.S.C. § 2000bb-1(a); see also Hobby Lobby,
134 S. Ct. at 2777–79. Although the statute does not define
the term, “[i]t is well established that ‘when [a] statute’s
language is plain, the sole function of the courts—at least
where the disposition required by the text is not absurd—is
to enforce it according to its terms.” Lamie v. United States
Trustee, 540 U.S. 526, 534 (2004) (citation omitted). Here,
we are faced with such a scenario. “Substantial” is
traditionally defined as “[c]onsiderable in amount,” Black’s
Law Dictionary 1656 (10th ed. 2014), and “burden” as
“[s]omething that hinders or oppresses,” id. at 236. It
therefore is clear that a substantial burden exists where the
government has considerably hindered or oppressed any
sincere religious conduct. See, e.g., San Jose Christian Coll.
v. City of Morgan Hill, 360 F.3d 1024, 1034–35 (9th Cir.
2004) (using the dictionary definition of “substantial
burden”). Contra Kaemmerling v. Lappin, 553 F.3d 669, 678
(D.C. Cir. 2008) (using First Amendment precedent to




                              6
       United States v. Sterling, No. 15-0510/MC & 16-0223/MC
                     Judge OHLSON, dissenting

conclude that a substantial burden requires a compelled
violation of beliefs). 5
    Finally, if a servicemember has successfully made this
threshold showing—i.e., demonstrated both that he or she
engaged in sincere religious conduct and that the
government substantially burdened that religious exercise—
the burden shifts from the servicemember to the
government, which then must justify its actions. 42 U.S.C. §
2000bb-1(b); see also Hobby Lobby, 134 S. Ct. at 2779. To do
so, the government must prove not only that it was seeking
to achieve a compelling governmental interest when it
burdened the servicemember’s religious exercise, but that
there existed no other, less burdensome means to protect
that interest. 42 U.S.C. § 2000bb-1(b). This standard is
“exceptionally demanding,” Hobby Lobby, 134 S. Ct. at 2780,
and requires a reviewing court to “look[] beyond [the
government’s] broadly formulated interests … and
scrutinize[] the asserted harm … to particular religious
claimants,” O Centro, 126 S. Ct. at 1220.
    Of course, this review entails special considerations in
the military context. It goes without saying that the
military’s unique nature and mission give rise to the crucial
interest of maintaining good order and discipline, an
objective that is without analog in the civilian world. See,
e.g., Brown v. Glines, 444 U.S. 348, 354 (1980) (noting that
the military has a “substantial Government interest” in
maintaining “a respect for duty … discipline” (internal
quotation marks omitted) (citation omitted)); see also
United States v. Caldwell, 75 M.J. 276, 281–82 (C.A.A.F.

   5  As demonstrated by Kaemmerling, there is a distinct split
among the federal circuit courts of appeals that have analyzed this
prong of RFRA. The Supreme Court has yet to address this point,
likely because the government typically concedes the existence of
a substantial burden—even in cases where the challenged action
does not compel an affirmative violation of a person’s religious
beliefs. See, e.g., Gonzales v. O Centro Espirita Beneficente Uniao
do Vegetal, 546 U.S. 418, 428 (2006). But see Priests For Life v.
Dep’t of Health & Human Servs., 772 F.3d 229, 244 (D.C. Cir.
2014), vacated and remanded sub nom. Zubik v. Burwell, 136 S.
Ct. 1557 (2016) (per curiam) (explicitly declining to answer this
question).


                                 7
    United States v. Sterling, No. 15-0510/MC & 16-0223/MC
                  Judge OHLSON, dissenting

2016) (emphasizing the same). To be clear then, the
military’s need to maintain good order and discipline may
in certain circumstances trump an individual
servicemember’s presumptive right to engage in religious
exercise.
    But while the military’s asserted interest in good order
and discipline surely deserves great deference, it does not
demand reflexive devotion. Rather, in each case an
individualized determination must be made about whether
the military’s interest was compelling, and whether in
realizing that interest, the military could have employed
means that were less burdensome on the servicemember’s
religious liberties. And in so doing, attention must be paid to
the fact that by enacting RFRA, “Congress … placed a
thumb on the scale in favor of protecting religious exercise.”
McHugh, 109 F. Supp. 3d at 92. 6 The plain language of the
statute mandates this approach, and it is not our role to
question the lawfully enacted policies of Congress.
       IV. How RFRA Applies in This Specific Case
    At trial, LCpl Sterling adequately demonstrated that the
actions for which she was being court-martialed constituted



6  When analyzing RFRA cases, the language of the statute
controls—even in the military. I acknowledge the majority’s
concern about potentially establishing a “disobey first, explain
later” approach to religious liberty in the armed forces. However,
under the provisions of RFRA as enacted by Congress,
servicemembers who engage in religious exercise pursuant to their
statutory rights are not, in fact, disobeying a lawful order.
Therefore, in such instances the “disobey first, explain later”
concept is inapt; the statutory scheme provided by Congress is
more akin to “exercise first, defend later if necessary.” Indeed,
consistent with the statute’s provisions as crafted by Congress,
servicemembers are not constrained from asserting a RFRA
defense at any point in the disciplinary process. The question of
whether this is the best approach in the military is a legislative
determination, not a judicial one. And finally, it is important to
note that those servicemembers who do disobey a lawful order and
then improperly seek the protection of RFRA at a later date can be
treated by the military in the same manner as any other
servicemember who disobeys a lawful order for nonreligious
reasons—to include being convicted at court-martial.


                                8
       United States v. Sterling, No. 15-0510/MC & 16-0223/MC
                     Judge OHLSON, dissenting

“religious” conduct. 7 LCpl Sterling testified that both the
substance and placement of her signs were inspired by her
Christian faith. The slips of paper that LCpl Sterling placed
on her workspace were organized in the form of the “trinity,”
an unmistakable Christian motif, and on them was printed a
biblically inspired quotation: “No sword formed against me
shall prosper.” This, LCpl Sterling suggested at trial, was
done because she is “a religious person” and therefore
viewed the printouts as providing her with the “protection of
three.” Thus, there is no doubt that LCpl Sterling’s conduct
required further analysis under the provisions of RFRA.
However, the CCA concluded otherwise.
    In its decision, the CCA held: “[W]e believe the definition
of a ‘religious exercise’ requires the practice [to] be ‘part of a
system of religious belief.’” United States v. Sterling, No.
NMCCA 201400150, 2015 CCA LEXIS 65, at *14, 2015 WL
832587, at *5 (N-M. Ct. Crim. App. Feb. 26, 2015). The CCA
then went on to “reject … [A]ppellant’s invitation to define
‘religious exercise’ as any action subjectively believed by the
appellant to be ‘religious in nature.’” Id. The CCA was
wholly mistaken.
    It has long been recognized that courts are particularly
ill equipped to govern what does or does not constitute
“religion.” See Thomas, 450 U.S. at 715 (noting that “the
judicial process is singularly ill equipped to resolve …
[intrafaith] differences [among followers of a particular
creed]”); Africa v. Pennsylvania, 662 F.2d 1025, 1031 (3d Cir.
1981) (“Judges are ill-equipped to examine the breadth and
content of an avowed religion ….”). Instead, as the Supreme
Court recognized in the First Amendment context, the
exclusive role of a reviewing court “is to decide whether the
beliefs professed … are sincerely held and whether they are,
in [a servicemember’s] own scheme of things, religious.”
United States v. Seeger, 380 U.S. 163, 185 (1965); see also

   7  This is not to say that LCpl Sterling proved she was
engaging in “religious exercise.” As explained above, in order for a
RFRA claimant to prevail on this prong, he or she must
demonstrate that the conduct was religiously inspired and that it
was sincere. A mere showing that the servicemember engaged in
conduct that had religious overtones is not sufficient.


                                 9
       United States v. Sterling, No. 15-0510/MC & 16-0223/MC
                     Judge OHLSON, dissenting

Manneh, 645 F. Supp. 2d at 112 (“[W]hile courts may be
poorly equipped to determine what is religious, they are
seasoned appraisers of the ‘motivations’ of parties and have
a duty [under RFRA] to determine whether what is
professed to be religion is being asserted in good faith.”). It is
therefore the case that “[i]mpulses prompted by dictates of
conscience as well as those engendered by divine commands
are … safeguarded against secular intervention, so long as
the [servicemember] conceives of the beliefs as religious in
nature.” Patrick v. LeFevre, 745 F.2d 153, 158 (2d Cir. 1984);
accord Thomas, 450 U.S. at 715 (“Courts should not
undertake to dissect religious beliefs [of a] believer … [even
if] his [or her] beliefs are not articulated with … clarity [or]
precision ….”); see also Korte v. Sebelius, 735 F.3d 654, 685
(7th Cir. 2013) (“[T]he judicial duty to decide substantial-
burden questions under RFRA does not permit the court to
resolve religious questions or decide whether the claimant’s
understanding of his faith is mistaken.”).
    As a result, the CCA’s flawed understanding of RFRA
prevented it from addressing whether LCpl Sterling’s
conduct was sincerely founded on her religious beliefs and,
as a corollary, whether LCpl Sterling was engaged in
“religious exercise”—the very first prong of RFRA. Such a
determination must be built solidly on facts and, by statute,
this fact-finding function lies solely in the unique province of
the courts of criminal appeals; it does not lie within the
purview of this Court. Thus, the proper disposition of this
case is as clear as it is narrow. This Court should remand
this case to the CCA so that it can properly consider the
factual basis for LCpl Sterling’s RFRA claim with a correct
understanding of the law. 8 To this end, it is the CCA’s
prerogative to determine whether this is possible on the
record or whether it is necessary to order a DuBay 9 hearing.

   8  To be clear, this conclusion in no way purports to suggest
that LCpl Sterling should have or would have prevailed on the
merits if the majority had ordered a remand. My position is based
squarely on the fact that the CCA’s obvious legal error deprived
LCpl Sterling of an appropriate legal and factual review of her
case.
   9 See generally United States v. DuBay, 17 C.M.A. 147, 37
C.M.R. 411 (1967).


                                10
    United States v. Sterling, No. 15-0510/MC & 16-0223/MC
                  Judge OHLSON, dissenting

Either way, the CCA should correctly consider the issues
presented in this case. LCpl Sterling deserves no less, and
we should seek to address nothing more. 10
       V. The Majority’s Substantial Burden Analysis
            Cannot Be Reconciled with RFRA
     I disagree with four aspects of the majority’s substantial
burden analysis. First, the majority creates a requirement
that the religious conduct must be “important” to the
servicemember’s faith in order to merit protection under
RFRA. This directly contradicts the routine recognition that
“[i]t is not within the judicial ken to question the centrality
of particular beliefs or practices to a faith, or the validity of
particular litigants’ interpretations of those creeds.”
Hernandez v. Commissioner of Internal Revenue, 490 U.S.
680, 699 (1989); see also Sample v. Lappin, 424 F. Supp.
2d 187, 193 (D.D.C. 2006) (noting the same in its RFRA
analysis). In fact, the statute explicitly states that religious
exercise does not have to be compelled by or central to a
system of religious belief. See 42 U.S.C. §§ 2000bb-2(4),
2000cc-5(7)(A). Thus, the apparent assertion that religious
conduct must be “important” to the servicemember’s faith in
order to merit protection under RFRA is mistaken.
    Second, the majority’s approach creates a novel notice
requirement. But nowhere in RFRA’s text, its legislative
history, or the relevant case law does there appear any
indication that the government must be conscious (or even
sensitive to the possibility) that its actions may
impermissibly curtail religious exercise in order for a
successful RFRA defense to lie. Cf. Lappin, 424 F. Supp. 2d
at 193 (noting that “[w]hether plaintiff declared his Jewish
faith at the time of his incarceration is of no moment [to

   10  Any consideration of Appellant’s claim, even after a proper
RFRA analysis, would be incomplete without answering a
question of fact that has not yet been considered, let alone
addressed, by either the military judge or the CCA: Was LCpl
Sterling’s conduct sincere? This question lies beyond the proper
scope of our authority, and because the answer is essential to the
proper resolution of this case, we have but one option: Remand.
Cf. United States v. Edwards, 46 M.J. 41, 46 (C.A.A.F. 1997)
(remanding case for further proceedings where relevant facts were
not developed to resolve legal issue).


                               11
     United States v. Sterling, No. 15-0510/MC & 16-0223/MC
                   Judge OHLSON, dissenting

whether his religious conviction was sincere]”). Indeed,
RFRA was in many ways designed to apply where the First
Amendment could not—that is, in the face of generalized,
unintentional religious encumbrance. See generally 42
U.S.C. § 2000bb(a)(2) (“[L]aws [that are] ‘neutral’ toward
religion may burden religious exercise as surely as laws
intended to interfere with religious exercise.”); Holt, 135 S.
Ct. at 859–60 (“Congress enacted RFRA in order to provide
greater protection for religious exercise than is available
under the First Amendment.”).
    Third, the majority mistakenly follows the Government’s
lead and considers LCpl Sterling’s failure to avail herself of
the Navy’s accommodation framework. In the instant case,
however, the Navy’s accommodation regime is irrelevant.
LCpl Sterling is challenging her NCO’s order to remove her
religiously inspired signs; she is not challenging the general
provisions of the Navy’s accommodation framework, nor is
she challenging how that framework was applied in her
specific case. Under such circumstances, if a servicemember
demonstrates that he or she has met the first prong of
RFRA, the focus must then be placed squarely on the scope,
nature, and effect of the burden placed by the government
on the servicemember’s religious exercise—not on whether
the servicemember could have sought “permission” from the
government before engaging in the religious exercise. 11


11  The majority is correct that “an option to request an
accommodation” can, in some cases, be relevant to a court’s
analysis under RFRA. United States v. Sterling, __ M.J. __, __ (19–
20) (C.A.A.F. 2016). For example, the presence and nature of an
accommodation mechanism would be appropriately considered in
a case involving a challenge to a regulatory framework writ large.
See, e.g., Hobby Lobby, 134 S. Ct. at 2782; see also Little Sisters of
the Poor Home for the Aged v. Burwell, 794 F.3d 1151, 1178 (10th
Cir. 2015) (addressing whether an accommodation framework
itself creates a substantial burden), vacated and remanded sub
nom. Zubik, 136 S. Ct. 1557. Here, however, we are not faced with
such a scenario, and the focus exclusively belongs on the NCO’s
order. See, e.g., Singh, 2016 U.S. Dist. LEXIS 26990, at *27–37,
2016 WL 837924, at *9–11 (holding that a military order to
undergo testing was violative of RFRA even though the order was
issued to allow the Army to determine whether to grant a religious
accommodation to a Sikh officer). Whether LCpl Sterling could


                                 12
    United States v. Sterling, No. 15-0510/MC & 16-0223/MC
                  Judge OHLSON, dissenting

    Fourth, and finally, the majority takes the position that
the Supreme Court’s historical understanding of the term
“substantial burden”—specifically, in the First Amendment
context—makes clear that a claimed burden must be based
on an affirmative violation of one’s religion in order to
qualify as “substantial.” Thus, in the majority’s view,
because Appellant neither indicated that her religion
requires her to post signs nor claimed that her religion
prevents her from removing those signs, Appellant’s conduct
lies beyond the ambit of RFRA’s embrace. But this approach
unjustifiably   narrows      RFRA’s    substantial    burden
requirement.
    Even if Congress implicitly sought to codify the
understanding of “substantial burden” that was woven into
the Supreme Court’s First Amendment case law, nothing in
that precedent indicates that a governmentally urged
violation of one’s religious beliefs is the exclusive means for
effecting a substantial burden. See, e.g., Ford v. McGinnis,
352 F.3d 582, 593 (2d Cir. 2003) (Sotomayor, J.) (“Whether a
particular practice is religiously mandated is surely relevant
to resolving whether a particular burden is substantial.
[But] the Supreme Court … [has never] held that a
burdened practice must be mandated in order to sustain a …
free exercise claim.… To confine … protection … to only
those religious practices that are mandatory would
necessarily lead us down the unnavigable road of attempting
to resolve intra-faith disputes over religious law and
doctrine.… We therefore decline to adopt a definition of
substantial burden that would require claimants to show
that they either have been prevented from doing something
their religion says they must, or compelled to do something
their religion forbids.” (citations omitted)); see generally
Thomas, 450 U.S. at 715. That is to say, a compelled
violation of one’s religion may be sufficient for finding a
substantial burden, but this does not also mean that it is
necessary for such a finding. Therefore, I cannot adopt the


have sought permission for her conduct is therefore irrelevant to
the legality of her NCO’s order to remove LCpl Sterling’s
religiously inspired signs. To hold otherwise would subvert the
very purpose of RFRA.


                               13
    United States v. Sterling, No. 15-0510/MC & 16-0223/MC
                  Judge OHLSON, dissenting

majority’s unduly narrow definition of the term and believe
it to be inconsistent with both the plain language and clear
purpose of RFRA.
                        VI. Conclusion
   The majority opinion ventures beyond that which is
necessary to decide the issue before us. In the course of
doing so, the Court not only fails to ensure the proper
application of RFRA to LCpl Sterling’s specific case, it more
generally imposes a legal framework that unnecessarily
curtails   the   religious   freedom    of    our    nation’s
servicemembers. For this reason, I must respectfully
dissent.




                             14