So much for Lloyd Austin’s vaccine mandate … at least for 35 Navy SEALs. A federal judge imposed a preliminary injunction on the Department of Defense after the commandos objected on religious grounds to the order to receive COVID-19 vaccinations. Judge Reed O’Connor scoffed at the Navy’s religious-exemption request process, calling it “theater”:
A Texas federal judge has barred the Defense Department from penalizing 35 Navy SEALs who refused to get vaccinated against COVID-19 on religious grounds.
US District Judge Reed O’Connor in Fort Worth granted a preliminary injunction Monday in the lawsuit filed against the Navy and the Pentagon on behalf of the group of Christian active-duty special operations members.
O’Connor noted that the SEALs contended that the military’s vaccine policy “violates their religious freedoms under the First Amendment and Religious Freedom Restoration Act.” …
The judge cited the Navy’s own policy, which states that “personnel refusing to receive vaccines … based solely on personal or religious beliefs are disqualified.”
The COVID-19 pandemic doesn’t amount to an emergency that could abrogate constitutional rights, O’Connor ruled, even for members of the military whose constitutional rights are somewhat limited by military discipline. The exemptions in this case rely on opposition to abortion and its products and processes, among other more arcane concerns. O’Connor accepts that these are sincerely held religious beliefs for the purposes of RFRA application, although that might be a matter for a trial court to determine at some point.
We’ll get back to RFRA in a moment, but the Navy dug its own grave so to speak with a clearly laughable process for religious exemption requests regardless of how sincere those might be. The Navy made a mockery of its own process, O’Connor concluded, by ordering reviews to simply fill out a disapproval template and forcing requests through a 50-step process, in which an actual review doesn’t take place until step 35:
The facts overwhelmingly indicate that the Navy will deny the religious accommodations. The Navy has denied twenty-nine of Plaintiffs’ thirty-five accommodations requests.11 Outside of Plaintiffs’ requests, the Navy has, to date, never granted a religious accommodation request for the COVID-19 vaccine.12 In fact, in the past seven years, the Navy has never granted a single religious exemption for any vaccine.13 Several Plaintiffs have been directly told by their chains of command that “the senior leadership of Naval Special Warfare has no patience or tolerance for service members who refuse COVID-19 vaccination for religious reasons and wants them out of the SEAL community.”14
The Navy’s accommodation process confirms those fears. The Navy uses a fifty-step process to adjudicate religious accommodation requests.15 Under the standard operating procedures for the 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. That prepared letter is then sent to seven offices for review. After those offices review the disapproval letter, the administrator packages the letter with other religious accommodation requests for final signature. The administrator then prepares an internal memo to Vice Admiral John Nowell, asking him to “sign . . . letters disapproving immunization waiver requests based on sincerely held religious beliefs.”16
Then, at step thirty-five of the process, the administrator is told—for the first time—to read through the religious accommodation request. At that point, the disapproval letter has already been written, the religious accommodation request and related documents has already been reviewed by several offices, the disapproval has already been packaged with similar requests, and an internal memo has already been drafted requesting that Vice Admiral Nowell disapprove the religious accommodation request.
Even if that process wasn’t cooked, O’Connor points out, the outcome is regardless of whether the exemption is granted:
Even if the religious accommodations are granted, Plaintiffs will not receive the relief they seek. Again, the record is replete with examples. Those who receive religious accommodations are still “medically disqualified.”18 That means Plaintiffs would be 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.19 By contrast, those receiving medical accommodations are not medically disqualified—they receive equal status as those who are vaccinated.20 Some Plaintiffs were told by their chains of command that if their religious accommodations were approved, they would lose their SEAL Tridents.21 Others will lose their Tridents merely for requesting the exemption.22 Evidently, even successfully exhausting the religious accommodation process would not grant Plaintiffs the relief they seek. In some instances, it may invite more harm. At best, the available remedies would accord Plaintiffs second-class status in a peerless community. Thus, the available administrative remedies are inadequate.
So what did the Navy say in fighting this lawsuit? They made a fairly strong point about the state interest in fielding a healthy fighting force at all times. Unfortunately, the Navy has undermined it with other exceptions:
Today, Plaintiffs present a lower risk of infection and transmission than in the earlier days of the pandemic. Several Plaintiffs have tested positive for antibodies, showing the presence of natural immunity. See Decl. of SEALs 10, 22; SWCC 2, 4; Supp. Decl. of SEAL 12. With a 99.4% vaccination rate, the Navy’s herd immunity is at an all-time high. COVID-19 treatments are becoming increasingly effective at reducing hospitalization and death. See Pfizer Novel COVID-19 Oral Antiviral Treatment Study, Pls.’ App. 310.
Moreover, the Navy is willing to grant exemptions for non-religious reasons. Its mandate includes carveouts for those participating in clinical trials and those with medical contraindications and allergies to vaccines. Pls.’ App. 154–59. Because these categories of exempt servicemembers are still deployable, a clinical trial participant who receives a placebo may find himself ill in the high-stakes situation that Defendants fear. Defs.’ Resp. 34, 48, ECF No. 43. As a result, the mandate is underinclusive. “Indeed, underinclusiveness . . . is often regarded as a telltale sign that the government’s interest in enacting a liberty-restraining pronouncement is not in fact ‘compelling.’” BST Holdings, LLC v. Occupational Safety & Health Admin., 17 F.4th 604, 616 (5th Cir. 2021).
O’Connor ruled that RFRA’s requirement for narrow tailoring to a state interest doesn’t apply here because the Navy’s case fails on more basic grounds. This, though, would show that the DoD would still lose the case even if its exemption process wasn’t so thoroughly dishonest. RFRA requires any rule or regulation that infringes on a constitutional right to be narrowly tailored to a compelling state interest — and maintaining the health of its fighting forces would certainly qualify. However, it’s clear in O’Connor’s ruling that the DoD hasn’t even bothered to hide the punitive nature of this mandate, let alone the lack of narrow tailoring.
Undoubtedly, the DoD will appeal, but that raises the stakes. O’Connor narrowly applied this ruling to only the 35 plaintiffs in this case. An appellate court that agrees with O’Connor may well decide that it should apply to the entire Navy, or perhaps all of the DoD’s personnel, both military and civilian. Perhaps Austin should have thought this through more carefully in the first place, and maybe the DoD should stop while they’re only 35 points behind.