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Military Leaders Urge U.S. Supreme Court to Honor Family of Fallen Soldier’s Request for Purple Heart

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August 1, 2022

News Release
For Immediate Release: 8.1.22
Contact: Peyton Luke, media@firstliberty.org
Direct: 972-941-4453
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AFPI Contact: Marc Lotter, mlotter@americafirstpolicy.com
Direct: 317-726-6589

Military Leaders Urge U.S. Supreme Court to Honor Family of Fallen Soldier’s Request for Purple Heart
Friend-of-the-court brief in key case challenges lower courts’ deference to military despite congressional action, First Amendment rights

Washington, DC—Today, former VA Secretary Robert Wilkie, former acting National Security Advisor Lieutenant General (Ret.) Keith Kellogg, and the Constitutional Litigation Partnership (CLP) at the America First Policy Institute (AFPI) joined First Liberty Institute in filinga friend-of-the-court brief at the Supreme Court of the United States in support of the petition for certiorari in Brown v. Wormuth, contesting the U.S. Army’s denial of a Purple Heart to SSG Joshua Berry.  The brief argues that the district court and United States Court of Appeals for the DC Circuit rubber-stamped the Army’s decision, reinforcing an “unusual deference” standard which treats service members as second-class citizens.

You can read the brief here.

“The Army’s denial of SSG Berry’s Purple Heart and the court system’s unwise deference to military leaders is a miscarriage of justice,” said Lt. Gen. (Ret.) Keith Kellogg, AFPI’s co-chair of the Center for American Security. “Military leaders are not above the law or beyond the constraints of the Constitution.  We hope the Supreme Court rights this wrong.”

Pam Bondi, Chair of the Constitutional Litigation Partnership at AFPI, added, “The Army’s denial of SSG Berry’s Purple Heart is simply wrong.  We will never know how many lives SSG Berry saved that tragic day, and the Supreme Court is the last hope for his family to receive the honor due from a grateful nation.”

“Judges have a constitutional duty to ensure all government officials – including military officials – follow the law,” said Mike Berry, Director of Military Affairs for First Liberty Institute. “But, in this case, courts have defaulted on their duty by granting the military ‘unusual deference’ even though Congress has spoken and the issue in question is procedural rather than one requiring military expertise. The Court needs to reverse the lower court decision to protect the First Amendment and religious liberty rights of service members.”

In 2009, Nidal Hasan killed 13 people and injured more than 30 at Fort Hood, Texas. When SSG Berry helped to prevent Hasan’s entry into a building on base, Hasan fired his weapon at SSG Berry, causing him to dive for cover and seriously injure himself in the process. SSG Berry was never the same after the horror he experienced that day and took his own life in 2013. Two years after SSG Berry’s death, Congress designated Hasan’s actions as an “international terrorist attack.” This allowed those injured and killed in the attack to be awarded the Purple Heart.

The Army initially recommended that SSG Berry receive the Purple Heart posthumously. But then, the Deputy Secretary of the Army reversed that decision. The Berry family sued in federal court to ensure his daughter will receive SSG Berry’s Purple Heart. In ruling against the family, the lower courts stated the Army is entitled to “unusual deference” on its procedural decisions.

According to the brief, “Under the ‘unusual deference’ standard, service members alleging violations of religious freedom or other constitutional rights would always lose, regardless of how unobstructive their requests may be. That is not what Congress intended, nor what the Constitution requires.  When Congress passed [the Religious Freedom Restoration Act, it clearly applied to the military.” The brief adds “that judicial deference toward military decision makers is not a zero-sum game. Rather, when constitutional or statutory rights are at stake, courts must not automatically defer to military decisions but should enforce those rights our brave service members promise to protect.”

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About First Liberty Institute 

First Liberty Institute is a non-profit public interest law firm and the largest legal organization in the nation dedicated exclusively to defending religious freedom for all Americans.

About the America First Policy Institute:

AFPI is a 501(C)(3) nonprofit, nonpartisan research institute focused on advancing policies that put the American people first. Led by senior leaders from the Trump Administration: Linda McMahon, Chair of the Board and former Administrator of the Small Business Administration; Larry Kudlow, Vice Chair of the Board and former Director of the National Economic Council; and Brooke Rollins, President and CEO, former Director of the Domestic Policy Council, and Chief White House Strategist. More information about AFPI and its 21 research centers can be found at www.americafirstpolicy.com.

To arrange an interview, contact Peyton Luke at media@firstliberty.org or by calling 972-941-4453.

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