In a rare move, A Federal Judge in Texas has granted a preliminary injunction that effectively stops all adverse actions against service members who have requested medical or religious waivers from receiving the COVID vaccine.  This injunction prevents the Pentagon from taking any further action to discharge or file charges against any service member who has applied for a waiver or had one refused.

In a blistering opinion, Judge Reed O’Conner, a Bush appointee in the Northern District of Texas stated that the Pentagon’s waiver process appeared to be intentionally designed to refuse all requests for waivers, pointing to the fact that to date, the Navy has not granted a single waiver of religious accommodation and spoke of a waiver process that appears to be rigged against granting any waivers.

On A Case By Case Basis, A Predetermined Denial Of Waivers

The Navy’s process for considering religious waivers which it says is on a “case by case basis”  is comprised of fifty distinct steps, but the very first fifteen steps in the process are the preparation of a letter of denial. For all practical purposes, the process of denying the waiver begins the instant the service member applies for one.  Only at step thirty-five is the actual request for the waiver read by an administrator, after the denial has been reviewed and signed all the way up to Vice Admiral Nowell, the Chief of Naval Personnel.  According to the injunction, nowhere in that fifty-step process is an administrator permitted to recommend granting the waiver, they are all processed from the very beginning in the default position of denying the request. The court also noted that this process of denying religious accommodation from the beginning of the waiver process has resulted in the Navy not granting a single religious-based waiver in the last seven years.

In August 2021, the Department of Defense imposed a vaccine mandate that required all service members to be vaccinated for COVID-19. The Navy in turn issued its own mandate requiring full vaccination of its personnel by November 28, 2021, under threat of facing the “full range” of disciplinary actions under its authority.

Members of Naval Special Operations were advised of this part in particular,

“[Special Operations] personnel refusing to receive recommended vaccines . . . based solely
on personal or religious beliefs are disqualified. This provision does not pertain to medical
contraindications or allergies to vaccine administration”

In this case, the use of the word “disqualified” refers to being deployable in their unit.  Being non-deployable effectively ends the career of a Navy SEAL, and this disqualification would remain in place even if a religious waiver was granted. So, in the case of these Navy SEALs the ax falls on them either way, just for expressing a religious objection.

Incredibly, the policy goes on to state that service members involved in vaccine clinical trials are also exempt from the non-deployable policy. It is the practice in such trials for some subjects to receive a placebo rather than the actual vaccine. This means the Navy would be deploying wholly unvaccinated personnel when the stated aim of the mandate is to have everyone vaccinated.

The judge found that on its face the Navy policy creates disparate treatment of service members and likely violates the Religious Freedom Restoration Act by punishing service members who even request a waiver and treat requests for medical waivers differently than it does for religious ones. While Service members are waiting for the fifty-step process for denying their request to be completed they have been subjected to treatment ranging from being barred from official and unofficial travel, inclusive of training and even treatment for
traumatic brain injuries. They have also been denied access to non-work activities, like unit family days.  Others have been assigned
difficult work schedules and menial jobs like cleaning toilets.  While in the waiver application process these service members have been relieved of leadership duties and denied opportunities for advancement, Navy SEALs have been kicked out of their platoons.  There are no reports of anyone applying for a medical waiver reporting similar treatment for simply filing their request.

This kind of treatment is common for service members already charged with offenses while waiting to appear for non-judicial punishment or a court-martial proceeding.  In this case, this treatment is being triggered by the request for religious accommodation. There are no reports of service members seeking a religious accommodation to wear a turban in uniform in the case of Sikhs or a beard for Norse Pagans being subjected to mistreatment by their commands while awaiting the decision on their request. For now, it appears only those requesting a COVID vaccine waiver on religious grounds are subject to mistreatment.

U.S. Marines Sgt. Maj. James Robertson, left, the sergeant major of Marine Corps Air Station (MCAS) Cherry Point, Col. Mikel Huber, center, the commanding officer of MCAS Cherry Point, and Lt. Col. Patrick Lindstrom, right, the executive officer of MCAS Cherry Point, pose after receiving the Moderna COVID-19 Vaccine at MCAS Cherry Point, North Carolina, on Dec. 23, 2020. The Department of Defense COVID-19 vaccination plan is phased. The vaccine received emergency use authorization from the Food and Drug Administration and election to accept the vaccination is voluntary. (U.S. Marine Corps photo by Lance Cpl. Jacob Bertram)
Marine Corps Air Station Cherry Point leaders Command Sergeant Major Sgt. Maj. James Robertson, Commanding Officer Col. Mikel Huber and Executive Officer Lt. Col. Patrick Lindstrom show their vaccination cards after receiving the Moderna COVID-19 Vaccine at the Navy Health Clinic Cherry Point, North Carolina, on Dec. 23, 2020.

 

A Substantial Burden To Religious Liberty

The Religious Freedom Restoration Act of 2005 states that,

“Government may substantially burden a person’s exercise of religion only if it
demonstrates that application of the burden to the person—(1) is in furtherance of a
compelling governmental interest; and (2) is the least restrictive means of furthering that
compelling governmental interest”

The plaintiffs in this case point to a “least restrictive means” that so far the government has refused to allow for, natural immunity from prior infection by COVID-19. Natural immunity is believed to be more comprehensive and longer-lasting than any vaccine.

This injunction by the court will remain in effect until the government files an appeal, but its effect could spill over.  Another federal case, this one in Florida, is comprised of Navy SEAls along with other service members.  These plaintiffs could also petition the court in Florida for a preliminary injunction along the same lines as the one just granted in Texas.

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This would put the attorneys at the Department of Justice and the Department of Defense in a tight spot legally.  They would be fighting two injunctions in two federal circuits that are closely related and argued.  If their appeals fail, they have only the Supreme Court to take the cases to.  One with a decided bend towards strict scrutiny when it comes to the government imposing on religious freedoms.

Courts Have Not Been Friendly To Vaccine Mandates

Vaccine mandates have not faired well in the courts.  The administration’s vaccine mandate imposed on the nation’s hospitals triggered a lawsuit by thirty-four states that resulted in a preliminary injunction that prevented its implementation in those states.  An appeal is being heard by the Supreme Court as this is being written. Should the appeal be granted and the mandate imposed it would likely trigger a second round of class action and individual lawsuits claiming that 1st Amendment protections of religious liberty are being violated by this mandate as well.

In 2004, a federal judge stopped the DoD from enforcing a vaccine mandate related to anthrax, saying “Congress has prohibited the administration of investigational drugs to service members without their consent. This court will not permit the government to circumvent this requirement.”

Prior to the lawsuit, some five-hundred service members were disciplined or court-martialed for refusal to receive the vaccine.  One received a seven-month prison sentence.  The arguments in this case never even got to the question of religious exemptions before it was struck down on the basis of the vaccine not being properly approved and tested by the FDA and therefore requiring either the consent of the service member or a formal order to take it from the President himself.

Finally, the current Defense Authorization Act for 2022, specifically forbids the military from handing down anything but an Honorable discharge to service members being separated for refusal to receive the vaccination.  A further loss in court for the government related to the entire process of vaccination waivers would trigger hundreds of not thousands of appeals by service members already discharged seeking to be reinstated to their former rank on active duty with the recovery of back pay and allowances.

That is not to say the government has not had any success.  It was able to beat back a lawsuit by the Governor of Oklahoma asserting his own authority over the vaccine mandate applying to the National Guard in his state.  The court sided with the government on the principle of who actually controlled the National Guard when it came to policy, the DoD.  Ironically, this case may have dealt a fatal blow to one of the arguments of gun control advocates who claim the National Guard constitutes the “militia” described in the Second Amendment and being under the authority of the nations’ governors and not the Pentagon.  This case found that the Pentagon paid, equipped, and supported the Guard and governors enjoy very limited authority over these units.

This decision did not address the status of service members seeking medical or religious waivers, only the authority of a governor to waive the vaccine mandate for Guard units in their states.

SOFREP has previously reported on these cases involving the civil rights of servicemembers here for further reading.

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