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I am just now starting to review it, but it looks interesting. The opinion provides this overview:
First, appellant contends he "did not freely plead guilty because the Islamic scholars he consulted prohibited him from serving in Iraq where he could kill fellow Muslims." We find appellant's plea knowing, voluntary, and provident. Second, appellant asserts the Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb [hereinafter RFRA], "provides precedent for invalidating" his guilty plea. We will review appellant's RFRA claim as an assertion that the Army infringed upon his First Amendment right to free exercise of religion by requiring him to deploy in support of Operation Iraqi Freedom. Assuming arguendo the Army substantially burdened appellant's exercise of religion, we nevertheless uphold the government action because the Army acted in furtherance of a compelling government interest and used the least restrictive means in furthering that interest. See Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418, 423 (2006).
Id., slip op. at 2.
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In 2006, I had a similar case in which I raised RFRA in a motion to dismiss, because the TC/CA were unwilling to negotiate a plea. In that case, the soldier had acquired specific Christian beliefs.
We had requested separation under AR 600-20, not the CO regulations. It was arguable whether the soldier would truly have been a CO. This will be interesting to follow up the chain, as it seems to me that in RFRA, Congress may have approved selective objection.
The case settled after I filed a stack of motions and habeas in Federal court, so we did not litigate the issue.
But,as I look at RFRA, it seems to me that the gov't must consider the least restrictive manner to address the soldier's concerns.
The "we are the military" therefore we don't need to address this seems insufficient to me. Soldier has religious beliefs and therefore only has the option of facing court-martial or violating those beliefs? RFRA on it face seems to refute that analysis. The recent decision in Rasul narrows RFRA at least as applied to accused enemy combatants in GITMO, but it seems to me that RFRA does require more of the military than: Parker, Goldmann and you're out.
I'll stick with Parker, Goldman, and you're out. Looks like that's how ACCA sees it too.
it appears from the facts that the unit attempted to resolve appellant's religious concerns through a non-combat role. Frankly, it sounds like the unit was actually trying to do right by the soldier and his idea of "least restrictive means" was non-deployable status or nothing. I'd like to hear from anonymous 1 what he thinks the unit could otherwise have done?
To add a non-substantive observation, how's this for chutzpah? I don't really care if ACCA wants to violate the Bluebook by capitalizing the adjective "constitutional," see Webster, slip op. at 15 n.6, or even the noun "constitutionality." See id. at 13 n.5. (Though these idiosyncrasies do seem particularly odd in light of ACCA's own citation guide's admonition to see the Bluebook for "additional guidance" regarding the capitalization of "constitution." See ACCA Citation Guide at 19 (6th ed. 2008).)
But it seems a bit over-the-top for ACCA to change instances of CMA's/CAAF's use of the standard "constitutional" to the non-standard "[C]onstitutional" in quotations. See Webster, slip op. at 12, 13. And, yes, ACCA demonstrates chutzpah by changing two quotations from United States Supreme Court opinions to "[C]onstitutional." See id. at 15 (quoting West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 642 (1943)); id. at 18 (quoting Goldman v. Weinberger, 475 U.S. 503, 507 (1986)).
A1, not to "out" you, but would you mind posting the name, court, docket number and settlement terms (assuming they were not confidential) of the habeas case?
This misses the point, just a bit.
It cannot be true that the Government used the least restrictive means in furthering its interest. As a matter of logic, the least restrictive means here would be to provide an exemption for Muslims from fighting against other Muslims. Just like in WWII, Japanese Americans were sent to the European theater.
I do not advocate this position. But I just think that Courts should speak truthfully.
I am the "outed" anonymous. I am not saying that I believe the result was incorrect in Sgt Webster's case. Mr Klimaski and his client have a tough battle with these facts.
I am noting that under the "law of unintended consequences" that Congress, with RFRA, has created a method for selective objection. It might be useful to have a mechanism for addressing the cases that will no doubt be coming forward. As I read RFRA, the services may be required to "accomodate" those who oppose a war based on religious belief. Hmm.
It is my understanding, correct me if it is not true, Army lurkers, that the Army eliminated its religious accommodation board a few years ago.
Gene, we dismissed the habeas after the plea, I will forward the petition to you offline.
The ACCA decision is getting some play over at the Volokh Conspiracy. www.volokh.com
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