Navy SEALs are fighting for religious exemptions to vax mandates, and the battle is far from over

Micaela Burrow, DCNF

  • U.S. Navy SEALs continue fighting in the courts to obtain religious exemptions to the military’s mandatory COVID-19 vaccination while the Biden administration lets exemption requests stack up, unaddressed.
  • Legal experts argue that the administration’s argument to national security no longer applies in light of changing CDC guidelines.
  • “The Constitution, federal law, and DOD regulations all protect religious liberty in the military, and our courts have repeatedly reminded us that there is no [COVID-19] exception to the Constitution,” Mike Berry, senior counsel at the First Liberty Institute that is representing the SEALs, told the Daily Caller News Foundation.

Some Navy SEALs’ case for religious exemptions to COVID-19 vaccination trudges along in the Fifth Circuit court as defense leaders remain wedded to the Biden administration’s military vaccine mandate.

Pandemic restrictions have loosened significantly in most sectors, with federal guidelines changing to reflect the lessened threat of the virus, but the Department of Defense (DOD) continues to maintain that vaccination is critical to ensure readiness of the armed services. It will take continued litigation to convince the military to respect religious accommodation laws that would prevent thousands of service members from facing discharge or confinement to low-skill jobs, the SEALs’ attorneys told the Daily Caller News Foundation.

“The law is on our side. The Constitution, federal law, and DOD regulations all protect religious liberty in the military, and our courts have repeatedly reminded us that there is no (COVID-19) exception to the Constitution,” Mike Berry, senior counsel at the First Liberty Institute that is representing the SEALs, told the DCNF.

First Liberty filed suit in November 2021 on behalf of 26 Navy SEALs and other Special Warfare personnel against the Biden administration, arguing that the mandate violates servicemembers’ right to free exercise of religion.

In January, a Texas judge, relying on the Religious Freedom Restoration Act (RFRA), temporarily blocked the Navy from considering vaccination status when making assignment decisions for the plaintiffs. The case reached the Supreme Court in March when the Biden administration asked the court to reverse the ruling, and the court granted a partial stay to the order.

Out of the 3,375 sailors who have requested religious exemptions to the COVID-19 vaccine as of Aug. 24, only 46 have been approved, according to Department of Defense data. So far, the Navy has recorded 105,277 COVID-19 cases and 17 deaths.

“Did the Navy, in good faith, apply the Religious Freedom Restoration Act in these cases, or did they predetermine that they were going to deny all religious accommodations?” R. Davis Younts, an Air Force reservist and attorney representing several military members seeking religious exemptions, told the DCNF. Referring to the latter possibility, he claimed, “It’s clear that they did, and I think the facts continue to bear that out.”

The military needs to consider exemption cases individually instead of stonewalling requests or issuing blanket denials that no longer reflect the Biden administration’s own COVID-19 guidance, Younts added. The compelling interest of the military to require vaccination — that COVID-19 posed a direct threat to military readiness — no longer exists.

Sailors, soldiers and airmen, many of whom have years of highly-specified training and experience under their belts, remain in limbo while court cases play out, unable to receive promotions or continue their training, Younts explained. Thousands of service members may be dragooned out of a force that is already falling vastly short of its recruiting goals amid blatant threats of war from foreign powers.

“We’re being treated like pariahs,” he said.

The only way forward is continued litigation and “individual military members taking a stand,” Younts said, adding that any policy change among DOD leaders is unlikely.

“This is a public interest issue with significant implications … that has to make a difference,” he added.

Virginia on Tuesday joined 21 other states in filing an amicus brief, dated Aug. 29, supporting the religious liberty of Navy SEALs and other U.S. Navy members to seek vaccine exemptions. The Biden administration has asked the court to give the military “extraordinary” deference in its decision to mandate and enforce vaccination, undermining the fundamental liberties of Navy service members, according to the brief.

“Navy SEALs are some of our best and brightest, willing to sacrifice their lives to protect our freedoms. Those who have filed religious exemptions for the COVID-19 vaccine deserve to be heard and taken seriously,” Virginia Attorney General Jason Miyares said in a statement.

The states argued that they have effectively managed COVID-19 within their borders without infringing on religious liberties, and the government should be able to do the same. They decried the administration’s “overreaching and flawed claims of legal authority.”

“The Administration’s near-blanket refusal to grant religious exemptions is not credible … its denial in this case is not entitled to deference,” the brief stated.

However, the Supreme Court had argued that the previous injunction overstepped the judiciary’s authority by overturning an order of the Executive made in an apparent effort to safeguard national security.

“RFRA does not justify judicial intrusion into military affairs in this case. That is because the Navy has an extraordinarily compelling interest in maintaining strategic and operational control over the assignment and deployment of all Special Warfare personnel — including control over decisions about military readiness,” Justice Kavanaugh wrote in the concurring opinion.

 

Discharges for sailors seeking religious exemptions have been postponed pending the court case, according to the Navy. Of those who either did not seek exemptions or whose requests were denied, 1,533 have been separated with honorable characterization of service.

The Navy and the White House did not respond to the Daily Caller News Foundation’s request for comment.

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