Briefing Room


Alumnus works to defend religious liberties in the armed forces

June 6, 2016 | Alumni

Practicing  law is one thing. Changing the law is another thing altogether. Michael Berry ’05, has managed to make a career of the latter, defending religious liberties as senior counsel and director of military affairs at First Liberty Institute.

Berry didn’t always know he wanted to pursue a career in constitutional law. After several years of experience as a judge advocate with the Marine Corps, including a high-profile combat deployment to Afghanistan and two years as a law professor at the United States Naval Academy, Berry was looking not simply to argue the law, but to change it.

“I was frustrated as a federal prosecutor,” said Berry. “I wanted to make arguments that I couldn’t because of the line of preceding cases. ‘Those are terrible arguments,’ I said. ‘How do I change them?’” That’s when Berry became an appellate litigator, arguing numerous cases before various federal appeals courts. “Learning the law from the appellate perspective was like drinking from a fire hydrant,” he said. “But it was also the most fun I’ve ever had in uniform.”

In 2013, Berry joined First Liberty Institute, where he oversees all legal cases involving religious liberty within the armed forces. “As a Marine, I swore an oath to defend the Constitution. At First Liberty, I get to carry on that mission. I just wear a different uniform,” Berry said. “Combining my military experience with my innate passion for the Constitution, it was a natural fit for me to join First Liberty.”

“As Americans, religious liberty is our first freedom and the freedom from which all other freedoms flow,” said Berry. “Constitutional law is not a lucrative field with large monetary damages, and most people lack the financial wherewithal to defend themselves when their religious freedoms are threatened or taken away. First Liberty Institute vindicates people’s religious rights to ensure that the Constitution is alive and well in this country,” he said. “And we provide this free of charge to our clients.”

“If we don’t stand for our rights, we risk losing them,” said Berry. “I don’t want to see our Constitutional liberties taken away. If the government has the ability to infringe upon our First Amendment rights, then what’s to stop them from doing so with our other Constitutional rights?”

And, stand for religious liberties he does. Whether he is advocating for his clients in the United States’ highest military court or testifying before Congress, Berry is a recognized subject-matter expert on military religious freedom—a freedom he says is increasingly at stake in today’s society.

According to “Undeniable,” First Liberty’s annual survey which catalogs all documented instances of religious hostility, occurrences have doubled in the last three years from 600 in 2013 to more than 1,200 in 2015. “When you combine the sheer quantity and increasing severity of instances of religious hostility, the data speaks for itself,” Berry said. “The need to protect religious liberty is greater than it’s ever been, and will only continue to increase.”

Berry’s career is dedicated to protecting and advocating for service men and women whose right to freely exercise their religion is threatened. Currently, Berry is working with Paul Clement, former U.S. Solicitor General, to appeal United States v. Sterling before the U.S. Court of Appeals for the Armed Forces (CAAF).

The defendant, a young Marine, was court-martialed for not removing a Bible verse from her workstation after her supervisor ordered her to take it down. Sterling invoked the Religious Freedom Restoration Act (RFRA) in her defense, but both the trial and lower appellate courts ruled that RFRA does not apply.

“When Sterling lost, and we witnessed the miscarriage of justice in the lower appellate court, we knew we had to represent her,” said Berry. Since CAAF is a court of discretionary review, Berry knew they needed to draw attention for the case to be heard. “How about calling on the guy who has probably argued more cases at the U.S. Supreme Court than any other living person: Paul Clement?” said Berry. “He’s argued at every federal jurisdiction in the nation except one—CAAF.”

With Clement on board, the case was accepted by CAAF. “Just last week, we submitted our reply brief, and are awaiting a date for oral argument,” said Berry. “It should be fun to go up against the United States government.”