A religious objection to a lawful order, which would be charged under Article 92, UCMJ, is litigated as an affirmative defense under the Religious Freedom Restoration Act (RFRA). RFRA provides that the government shall not substantially burden a person’s exercise of religion unless it can demonstrate that the burden is in furtherance of a compelling government interest and is the least restrictive means of furthering that interest. This is a very high standard for the government to meet.
The defense attorney would first file a motion to dismiss the charge with the military judge. To succeed, the defense must first show that their client has a sincerely held religious belief and that the military order places a “substantial burden” on their ability to exercise that belief. For example, an order to shave that violates a soldier’s religious requirement to maintain a beard would be a substantial burden.
Once the defense has made this initial showing, the burden shifts to the government. The government must then prove that it has a “compelling interest” in enforcing the order (e.g., mission safety or unit cohesion) and that there is no less restrictive way to achieve that interest. The judge will conduct a hearing and weigh the soldier’s religious freedom against the government’s stated military interest. If the judge finds that the government has not met its high burden under RFRA, they will grant the motion and dismiss the charge.