Legal Docket: Suing the Coast Guard

MARY REICHARD, HOST: It’s Monday, September 26th, 2022. This is The World and Everything in It and we’re glad you’ve joined us today. Good morning! I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. It’s time for Legal Docket.

Well, the 2022-2023 term of the U.S. Supreme Court begins one week from today, the first Monday in October. We will bring you coverage of every single oral argument again this term as we have for several years.

Meantime, we have today and next week to finish up our summertime project of covering lower-court disputes of interest.

REICHARD: That’s right. Today, we’ll hear about a class-action lawsuit filed this month against the U.S. Coast Guard and other officials over the Covid vaccine mandate.

In August 2021, the Department of Defense issued that mandate for military service members. A steady stream of lawsuits followed with claims the military violated religious freedom rights, among other things.

A leaked memo says the Pentagon has been preparing for these lawsuits.

EICHER: Current litigation includes a class action against the U.S. Marine Corps for denying religious accommodations related to the vaccine. A U.S. District Court in Florida granted preliminary relief in that case.

In this case, one of the lead plaintiffs is Lieutenant Junior Grade Alaric Stone with the US Coast Guard. He sued on behalf of 1,200 other service members whose request for a religious accommodation to the Covid shots have been denied, they say categorically. And now these service members are facing discharge from service.

REICHARD: On Friday, I spoke to Lt. Stone and his lawyer Nathan Loyd of the Thomas More Society. (Now, I should add that I was unsuccessful getting through to the Coast Guard to get a response. I’d still love to have the government’s side of the story, but typically the government doesn’t comment on pending litigation, so let’s not expect that.)

So first we’ll hear from Lt. Stone, and I need to qualify that he speaks only in his personal capacity and not for the US Coast Guard or US Department of Homeland Security.

STONE: My faith is something that I take very, very seriously. And I am a Roman Catholic, I've been involved in the Catholic church since I was very, very young. When the COVID vaccines were first introduced and, you know, I was looking into them, I came across the fact that these vaccines were developed with aborted fetal cells. And this was actually the first time that I came across this issue and realize that this was an issue and the more that I dug into this problem set, and the more that I researched it, the more I was absolutely horrified at what I found once I came across that there was no way that I could take this vaccine in good conscience.

The Coast Guard does not question Lt. Stone’s sincerity of religious belief. Although a few exemptions have been granted, Stone says the numbers tell the real story:

STONE: I am personally aware of is 12 between both approved initial accommodation requests and denials or it's nine appeals I'm sorry. So that's 12 compared to 1200 submitted and if you do the math on that that's 99% denied so an astronomical number.

Attorney Loyd told me that the few who did receive a religious exemption were already retiring or separating from service.

Many people assume the military is a special situation. You get an order, you follow it, no questions asked. And service members routinely receive certain other vaccinations.

But Loyd says this time’s different:

LOYD: We see that the efficacy of these vaccines are waning. These vaccines had a unique connection to abortion and their development and testing. And so there's so many service members who are saying, “Look, I'll get almost every other vaccine that's required. This one is different. This one has a unique situation. And if I were to go along with this mandate, I'd be violating my conscience, I'd be violating my obligations to God.” And so that that's where the hinge of the legal issue is. The First Amendment protects everybody's rights to freely exercise their religion, and service members don't forego those rights just by putting on a uniform, they're still protected.

Other laws also come into play here. For example, RiFRA, the Religious Freedom Restoration Act, signed into law in 1990 by President Bill Clinton.

LOYD: And under the Religious Freedom Restoration Act, the government must accommodate religious behaviors. They can only infringe those religious beliefs and behaviors with the least restrictive means possible. And what we're seeing here is that the covered vaccines are not the least restrictive means for protecting somebody's health against COVID. There's natural immunity, there's masking, there's social distancing, there's screening, all kinds of other alternatives that the military is just refusing to accept as being less restrictive.

Those things- masking and testing- these service members are willing to do.

Inconsistency is a bad look for any organization, including the Coast Guard.

LOYD: The Coast Guard didn't follow its own procedures. And they did this in two ways. First, the Coast Guard has a regulation saying that they will give exemptions to people if they have a history of prior infection or serological testing showing immunity and Aleric and the rest of our plaintiffs have that. But the Coast Guard is just refusing to follow its own regulation.

The lawsuit also includes another claim:

LOYD: And then there's another issue under the Administrative Procedure Act that the Coast Guard says all service members are allowed to appeal a denial of their religious accommodation requests. The appeal authority, though, is the supervisor of the person who initially denied that appeal.

Service members who aren’t granted a religious exemption from the Coast Guard face repercussions. Lt. Stone says he knows several people who’d been selected to advance, then told they won’t unless they get the shot.

STONE: The Coast Guard has released policies denying service members access to training that they need to fulfill their jobs and continue to advance in their own career fields. And even after released guidance relaxing some of these restrictions, the Coast Guard has still denied service members citing its old policy, which was incredibly strict and too draconian. So while on the surface, it appears that the Coast Guard has tried to relax some of its restrictions, in reality, they are still very much in force. For a large period of time service members were restricted in terms of their ability to travel outside a very limited radius of the unit in which they were serving at. And folks that were prevented from seeing family members, you know, wives children for months and months and very much restricted in their their ability to live normal lives. And right now, service members being restricted from actually continuing their service, something that they very much want to continue doing with one service member that I'm personally aware of already having been discharged as of Monday this week, and dozens more facing discharge in just the coming weeks alone.

Aside from these aspects, lawyer Loyd mentioned another one:

LOYD: But I think one of the most endemic issues here that is kind of latent, kind of hidden, is the idea of moral injury. Moral injury is what occurs when you're forced to witness or commit an act that your conscience is telling you is wrong. And we're seeing this, this harming obviously, the vaccine objectors who are just doing their best to follow their conscience. But we're also seeing this even among vaccinated people who are forced to punish their subordinates and report their peers in order to comply with this mandate.

That also harms unit morale.

Lawyer Loyd cited a Supreme Court ruling that says speculative future outcomes cannot be the basis to deny a religious right. That applies to Lt. Aleric Stone.

STONE: We see the same kind of principle present, especially with Aleric here. Aleric has meticulously followed all of the mitigation protocols, he is has been exemplary in following the protocols and ensuring that his troops have also followed the protocols to the point where Aleric was on all kinds of deployments all around the world, and state COVID free for the vast majority of of the time when he was deployed.

Lt. Stone referred to the first Commander in Chief, George Washington, to emphasize his stance:

STONE: I think that he put it very, very well when he wrote, "When we assume the soldier, we did not lay aside the citizen." And, yes, George Washington wrote that to indicate that even when the times were the toughest, even when the most draconian measures would have been justified, he's indicating that you know, soldiers are still citizens, they're still citizens serving their countrymen in a military capacity, but citizens nonetheless is still subject to their constitutional liberties.

It’s early days for this class-action lawsuit. A judge has already denied the class a temporary restraining order; the government must file a brief in the coming weeks. Meanwhile, service members face termination until this is resolved.

And that’s this week’s Legal Docket.

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