When service members shouldn’t follow orders

A recent controversy in our military raises an age-old question: must service members follow any and all orders, even those they find morally objectionable? 

In A Few Good Men, fictional U.S. Marine Colonel Nathan Jessup famously captured what most Americans believe is the rule for military orders: “We follow orders, son. We follow orders or people die.” What many Americans may not realize, however, is that the legal principle upon which Colonel Jessup relied is fiction. The United States military never trained its men and women to follow all orders blindly, unthinkingly.

{mosads}But what happens when a service member declines to follow an order that he or she thinks is morally wrong? What about an order that violates the Constitution or military regulations? What is the price of refusing to obey such an order?

If Marine Lance Corporal Monifa Sterling’s case is any indication, the price is high. 

While assigned to Camp Lejeune, North Carolina in 2013, Lance Corporal Monifa Sterling, a Christian, noticed that her colleagues adorned their workspaces with personal messages, photographs, and decorations. Sterling did the same, choosing to display a paraphrased Bible verse: “No weapons formed against me shall prosper.” 

Sterling printed those seven words on three small strips of paper and taped them to her computer. When Sterling’s supervisor, a staff sergeant who happens to be her former drill instructor, observed the verse, she ordered Sterling to remove it.  Citing her First Amendment rights and military regulations that protect religious freedom, Sterling did not remove the Bible verse. As a result, the Marine Corps court-martialed Sterling and convicted her of the military crime of disobeying an order.

When news of Sterling’s conviction spread, many immediately came to her defense. Yet others advised caution, invoking Colonel Jessup’s admonition that “we follow orders or people die.” Their argument seemed to be that good Marines should follow all orders unquestioningly.  

But let’s think about that. Sterling’s detractors likely would not hesitate to support Sterling had she refused an order to “stop going to church” or “burn your Bible.”  Nevertheless, the order Sterling’s supervisor gave was equivalent to such orders because it was a direct infringement on Sterling’s First Amendment rights.

By invoking the First Amendment, Sterling argues that the order to remove the Bible verse violated the Constitution. If she’s correct, the order was illegal.  A military appeals court could make the final determination of whether she has a legitimate claim to a First Amendment defense. But one thing is clear: all service members have the right and obligation to disobey illegal orders. Our Founding Fathers understood this concept and American military courts have long recognized this principle. 

In the 1969 case of United States v. Keenan, the nation’s highest military court upheld the murder conviction of a U.S. Marine who “obeyed” an order to shoot and kill an elderly Vietnamese citizen. The Marine argued that his actions were justified because he was obeying the order of his superiors. But the court ruled against him, stating that “I was only following orders” is not a valid legal defense if “the order was of such a nature that a man of ordinary sense and understanding would know it to be illegal.” In other words, there are some orders that we can immediately recognize as illegal and must not be followed.  

Indeed, the military oath of enlistment itself provides that those in military service swear or affirm they will obey orders “according to regulations and the Uniform Code of Military Justice.” Thus, an order to commit a crime must not be obeyed.  Likewise, an unconstitutional order—“stop going to church,” or “destroy that Koran,” for example—must not be obeyed. 

Perhaps men of ordinary sense understand that military orders to kill non-combatant civilians are illegal, but so, too, are orders that go against existing laws, rules, or regulations. The military service member bears great risk if they disobey an order; just ask Lance Corporal Sterling. But if they believe the order they disobeyed was illegal, they have the right to prove its illegality. And if the order was, in fact, illegal, the service member cannot be punished for disobedience.

Like all service members, Sterling voluntarily relinquished some of her freedoms when she joined the Marines. But religious freedom was not one of them. What is true for Lance Corporal Sterling is true for all of our service members: They have the right and the responsibility to disobey illegal orders, and they do not forfeit their religious freedom when they enter the military.  

Berry,a former U.S. Marine attorney and adjunct professor of law at the U.S. Naval Academy,is senior counsel and director of Military Affairs for Liberty Institute.  Liberty Institute is the largest nonprofit legal organization in the nation dedicated solely to defending religious liberty in America.