Our nation’s military servicemembers were ordered last September to receive COVID-19 vaccinations or be discharged. Some exemptions have been granted for medical and administrative reasons, but almost none have been granted for religious objections, despite thousands of requests. Many servicemembers of faith are successfully challenging the military’s hostility to religion in the courts, alleging the vaccine mandate violates their freedoms under the First Amendment and the federal Religious Freedom Restoration Act (RFRA).
I’m pleased to report that two more federal courts have ruled in favor of the religious claimants in recent days.
In a case The Daily Citizen has been following, 35 Navy SEALs and other Naval Special Warfare Command servicemembers were granted a preliminary injunction by a federal district judge in Texas that prevents the Navy from punishing those servicemembers for their failure to get vaccinated as deadlines have passed and the litigation proceeds. The Navy then asked the lower court judge to “stay” or delay the effect of the preliminary injunction, which was denied.
At that point, the Navy asked the 5th U.S. Circuit Court of Appeals in New Orleans to “stay” or limit the district court injunction so that it could take into account the vaccination status of those servicemembers in deployments and assignments during the pendency of the lawsuit.
A three-judge panel of the 5th Circuit unanimously turned down the Navy’s request, keeping the injunction in force.
“Defendants now seek a partial stay pending appeal insofar as the injunction precludes them from considering Plaintiffs’ vaccination statuses ‘in making deployment, assignment and other operational decisions,’” the 5th Circuit wrote. “The Navy has granted hundreds of medical exemptions from vaccination requirements, allowing those service members to seek medical waivers and become deployable. But it has not accommodated any religious objection to any vaccine in seven years, preventing those seeking such accommodations from even being considered for medical waivers. We DENY Defendants’ motion.”
The Navy’s conspicuously negative treatment of religious accommodation requests suggested to both the lower court and the 5th Circuit that religious hostility was at play.
“But evidence, recited previously and not meaningfully challenged here, suggests that the Navy has effectively stacked the deck against even those exemptions supported by Plaintiffs’ immediate commanding officers and military chaplains,” the 5th Circuit said.
The Navy servicemembers in the lawsuit are represented by attorneys with First Liberty Institute, who applauded the 5th Circuit ruling in a press release.
“Events around the world remind us daily that there are those who seek to harm America. Our military should be welcoming service members, not forcing them out because of their religious beliefs,” said Mike Berry, Director of Military Affairs for First Liberty. “The purge of religious servicemembers is not just devastating to morale, but it harms America’s national security. It’s time for our military to honor its constitutional obligations and grant religious accommodations for service members with sincere religious objections to the vaccine. We’re grateful the Fifth Circuit denied the Navy’s motion.”
In a similar case from Ohio, Michael Poffenbarger, an unvaccinated second lieutenant in the Air Force reserves assigned to Wright-Patterson Air Force Base, sued to keep from being discharged after his request for a religious exemption was rejected. A federal district court issued a preliminary injunction preventing his superiors from taking punitive action against him as his case proceeds in the courts.
In an opinion dated February 28, Judge Thomas M. Rose highlighted the poor treatment of religious exemption requests by the Air Force.
“[A]t the time when Poffenbarger filed this case and asked for preliminary injunctive relief (and for a few weeks thereafter), the Air Force had not approved a single religious exemption request to the COVID-19 vaccine mandate – temporary or otherwise,” the judge wrote, noting there had been “thousands of requests.”
The importance of both of these decisions, and of injunctions granted in similar cases, is that the military is not above the Constitution or RFRA in terms of protecting the religious freedoms of our nation’s servicemembers. Hopefully, our military branches will quickly learn the lessons of these rulings and stop discriminating against our men and women in uniform because of their religious faith.
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