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Challenges to military vaccine mandates mount

Three federal courts grant relief to service members denied religious exemptions

A military vaccination clinic at Joint Base Pearl Harbor-Hickam in Hawaii Associated Press/Photo by U.S. Air Force Tech. Sgt. Anthony Nelson Jr./Department of Defense, file

Challenges to military vaccine mandates mount

A federal judge in Tampa, Fla., on Friday blocked the U.S. Navy from disciplining a commander and lieutenant commander who were denied religious exemptions from a COVID-19 vaccine mandate. Both of the service members faced a career-ending discharge in early February as a result of disobeying the vaccination order.

In a 48-page opinion, U.S. District Judge Steven Merryday faulted the Navy for failing to give the officers the individualized attention required by the 1993 Religious Freedom Restoration Act (RFRA).

“The submission reveals a process of ‘rubber stamp’ adjudication by form letter, a process incompatible with RFRA’s command to assess each request ‘to the person,’” wrote Merryday.

To defend its actions successfully, the military must show that concerns of force readiness justified its denying nearly all requests for religious vaccine exemptions while granting thousands of individual medical exemption requests. It must also prove that discharge was the least restrictive means of accomplishing that objective.

Liberty Counsel’s Mat Staver predicted the case would wind up at the Supreme Court because the Department of Defense has dug in its heels on religious exemptions. Two other motions remain pending, he said, one to block the department from denying religious exemptions to the remaining 28 plaintiffs, including some from other branches of the military, and one seeking an order blocking the discipline of the entire class of service members whose religious exemption requests have been denied.

Staver described a military structure that seemed to view itself as impervious to challenge over the small number of service members requesting religious exemptions. “There’s one word for it: arrogance,” he said, adding that commanders were exhibiting a “lawless” attitude in failing to consider carefully each religious objector’s request.

A federal judge in Georgia last week stopped the Air Force from forcing an officer into early retirement over religious objections to the vaccine. “Very few scenarios paint a bleaker picture than giving up your livelihood in order to follow your religious beliefs,” wrote U.S. District Judge Tilman E. Self III. He added that the Air Force’s process for reviewing requests for religious accommodation was “both illusory and insincere.”

In early January, a federal judge in Texas blocked the Navy from punishing 35 SEALs and other Naval Special Warfare personnel who also had religious objections to the vaccines. U.S. District Judge Reed O’Connor concluded that because the mandate treated those with secular exemptions better than those seeking religious exemptions, strict scrutiny was warranted—and the military failed to show a compelling interest sufficient to survive that scrutiny.

“At least 99.4 percent of all active-duty Navy service members have been vaccinated. The remaining 0.6 percent is unlikely to undermine the Navy’s efforts,” O’Connor wrote.

O’Connor’s order barred the discipline of the 35 service members in the case, but First Liberty Institute attorneys have amended the complaint to make it a class-action suit. They asked the court earlier this month to extend its order, meaning all similarly situated service members claiming religious objections would be protected from discipline for refusing the vaccines. A ruling is expected in March. Justice Department lawyers have appealed O’Connor’s ruling.

Steve West

Steve is a legal correspondent for WORLD. He is a graduate of World Journalism Institute, Wake Forest University School of Law, and N.C. State University. He worked for 34 years as a federal prosecutor and is now an attorney in private practice. Steve resides with his wife in Raleigh, N.C.



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