Close this search box.

No First Amendment Right to Military Insubordination

In Wayne v. James, a Mormon airman flipped out that there were gay weddings at West Point’s chapel. In reaction to being reprimanded, he claimed that he had a right to express his sincerely held religious opinion under the Religious Freedom Restoration Act and under the First Amendment. Both arguments failed.

RFRA provides that the government “shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability,” unless the burden “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1. Thus, the first inquiry under RFRA is whether a government act has substantially burdened the plaintiff’s religious exercise. See Kaemmerling v. Lappin, 553 F.3d 669, 677-78 (D.C. Cir. 2008). In evaluating whether government action has substantially burdened a religious exercise, the court must, as a preliminary matter, identify the religious action or practice that the plaintiff asserts was substantially burdened. See id. at 679 (“Religious exercise necessarily involves an action or practice”). The religious action or practice need not be “compelled by, or central to, a system of religious beliefs.” 42 U.S.C. §§ 2000cc-5(7)(A). Nor shall the court “determine what religious observance [a plaintiff’s] faith commands.” Priests for Life v. U.S. Dep’t of Health & Human Servs., 772 F.3d 229, 247 (D.C. Cir. 2014). Instead, courts must look to the religious action or practice the plaintiff identifies as having been substantially burdened, without questioning either whether it is central to the plaintiff’s faith or whether the plaintiff sincerely holds his religious beliefs.

Here, Plaintiff has not asserted that the First LOR substantially burdened any religious action or practice. Rather, Plaintiff only asserts that the discipline imposed substantially burdened a religious belief, i.e., that same-sex marriage is a sin. (Op. at 13-14)

His First Amendment claim similarly failed.

“While the members of the military are not excluded from the protection granted by the First Amendment, the different character of the military community and of the military mission requires a different application of those protections.” Parker v. Levy, 417 U.S. 733, 758 (1974). Unlike civil society, the military “‘is not a deliberative body. It is the executive arm. Its law is that of obedience.’” Id. at 744 (quoting In re Grimley, 137 U.S. 147, 153 (1890)). Such obedience, order, and discipline “cannot be taught on battlefields; the habit of immediate compliance with military procedures and orders must be virtually reflex with no time for debate or reflection.” Chappell v. Wallace, 462 U.S. 296, 300 (1983). And so “[t]he military need not encourage debate or tolerate protest to the extent that such tolerance is required of the civilian state by the First Amendment.” Goldman v. Weinberger, 475 U.S. 503, 507 (1986) (citations omitted). (Op. at 17)

So much for my plan to establish the Universal Church of Go Fuck Yourself.

Skip to content