Navy’s exemption process is “by all accounts … theater,” federal order says.
By Greg Piper, January 3, 2022
The Navy cannot force service members with religious objections to COVID-19 vaccines to take them so long as the exemption process remains “by all accounts … theater,” a federal judge ruled Monday.
“Our nation asks the men and women in our military to serve, suffer, and sacrifice. But we do not ask them to lay aside their citizenry and give up the very rights they have sworn to protect,” U.S. District Judge Reed O’Connor wrote in approving a preliminary injunction against the mandate as applied to the 35 service members who sued.
“Every president since the signing of the Religious Freedom Restoration Act has praised the men and women of the military for their bravery and service in protecting the freedoms this country guarantees,” O’Connor said.
“The Navy has not granted a religious exemption to any vaccine in recent memory. It merely rubber stamps each denial,” the judge continued. “There is no COVID-19 exception to the First Amendment. There is no military exclusion from our Constitution.”
While the military claims the courts must wait for it to decide every religious exemption request, it has already denied 29, O’Connor wrote. The record is clear that each denial “is predetermined,” so the service members don’t have to wait for the Navy “to engage in an empty formality.”
In the 50-step adjudication process, “the first fifteen steps require an administrator to update a prepared disapproval template with the requester’s name and rank. In essence, the Plaintiffs’ requests are denied the moment they begin,” he said.
Finally at step 35, “the administrator is told—for the first time—to read through the religious accommodation request. … At no point in the process is the administrator given the opportunity to recommend anything other than disapproval.”
Even if the Navy granted a religious exemption, recipients would still be “medically disqualified” and thus “permanently barred from deployment, denied the bonuses and incentive pay that accompany deployment, and deprived of the very reason they chose to serve in the Navy,” O’Connor wrote.
Those who receive medical accommodations, by contrast, “receive equal status as those who are vaccinated.”
The judge cited testimony from some service members who were told “they would lose their SEAL Tridents” while others would lose the Tridents “merely for requesting the exemption.”
O’Connor said the record “overwhelmingly demonstrates that the Navy’s religious accommodation process is an exercise in futility. Plaintiffs need not wait for the Navy to rubber stamp a constitutional violation before seeking relief in court.”
They are likely to succeed on the merits because the Navy treats secular exemptions more favorably, he said. The judge also cited the 99.4% vaccination rate in the service and the natural immunity in several plaintiffs.
In addition to suspending the mandate for the service members who sued, O’Connor prohibited the military from “taking any adverse action against Plaintiffs on the basis of Plaintiffs’ requests for religious accommodation.”
“Forcing a service member to choose between their faith and serving their country is abhorrent to the Constitution and America’s values,” said the First Liberty Institute’s Mike Berry, who is representing the plaintiffs. “Punishing SEALs for simply asking for a religious accommodation is purely vindictive and punitive.”