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When religious beliefs and service orders conflict

Jan. 17, 2013 - 05:19PM   |   Last Updated: Jan. 17, 2013 - 05:19PM  |  
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Q. Can I disobey an order if it goes against my religious beliefs?

A. When service members' religious beliefs are at odds with their military duty, they can petition for conscientious objector status and be discharged or transferred to noncombat status.

But service members should not expect their religious beliefs to shield them from punishment for disobedience.

In 2012, the alleged Fort Hood, Texas, shooter, an Army major, appeared in court with a beard and refused to shave it off to adhere to the military's uniform and grooming regulations. He invoked the Religious Freedom Restoration Act of 1993, which prohibits the government from "substantially burden[ing] a person's exercise of religion even if the burden results from a rule of general applicability."

The RFRA features an exception, however, if the burden's application "is in furtherance of a compelling governmental interest" and "is the least restrictive means of furthering" that interest. The U.S. Court of Appeals for the Armed Forces found that this exception applied to the Army because it has "a compelling interest to ensure uniformity, good order, and discipline." It also has "a further interest in the fair and proper administration of military justice."

As such, the appeals court refused to intervene in the ordered forced shaving. (In a subsequent ruling, that decision was overturned because of the appearance of judicial bias, not because of the 1993 law.)

In the 1965 case U.S. v. Chadwell, the U.S. Navy Board of Review noted the consequences of letting a service member's religious beliefs trump military laws and regulations as it quoted a Supreme Court ruling:

"To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances."

That case involved two Marine officers who had refused to submit to various vaccinations, claiming they believed taking shots was a sin. They were found to be in violation of Article 92 of the Uniform Code of Military Justice, and the board affirmed the officers' guilty findings.

Troops experiencing difficulty performing their duties because of their religious beliefs should consult with a military law attorney. A lawyer could help them explore petitioning for conscientious objector status or determine the lawfulness of a regulation that substantially burdens their right to exercise religion, or whether any less restrictive means are available to further a compelling governmental interest.

Mathew B. Tully is a veteran of the wars in Iraq and Afghanistan and founding partner of Tully Rinckey PLLC (www.fedattorney.com). Email questions to askthelawyer@militarytimes.com. The information in this column is not intended as legal advice.

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