35 Naval Special Warfare Soldiers Obtain Preliminary Injunction Against Vaccine Mandate Under the Free Exercise Clause and Religious Freedom Restoration Act
|Topics:||Civil Rights • Culture • First Amendment • Religious Liberty|
|Sponsors:||Civil Rights Practice Group, Religious Liberties Practice Group|
On January 3, Judge Reed O’Connor of the Northern District of Texas preliminarily enjoined Navy and Department of Defense officials from enforcing their COVID-19 vaccination mandate against 35 Naval special warfare servicemembers. The first ruling in the country to grant relief against a military COVID-19 vaccine mandate, it provides a roadmap for further religious-liberty litigation in this area.
I. The Mandate
On July 29, 2021, President Biden directed the DoD to add the COVID-19 vaccine to its list of required immunizations for servicemembers. A month later, the DoD announced a policy that generally requires servicemembers to be vaccinated against COVID-19. The Navy then quickly implemented this policy with its own mandate, requiring full COVID-19 vaccination by November 28, 2021. Unless granted a religious or medical exemption, those not in compliance face discipline, including involuntary separation and recoupment of training and education expenses. While broad, the mandate is not universal; it excludes servicemembers “who are actively participating in COVID-19 clinical trials,” regardless of their immunity status, and regardless of whether they received the vaccine or a placebo.
Unlike those with medical contraindications, religious objectors in Naval special operations can hope only for a partial, second-class accommodation. While unvaccinated servicemembers with medical exemptions will remain eligible for deployment, those with religious accommodations will not. This loss of deployability not only will prevent servicemembers from performing combat duties, but also will carry a loss of pay and promotion opportunities.
II. The Plaintiffs
The plaintiffs serve as Navy SEALs or in special operations roles that support SEAL teams. Collectively, they have completed over 100 combat deployments. Representing a diversity of Christian traditions—Catholic, Protestant, and Eastern Orthodox—they object to COVID-19 vaccination on religious grounds. Many cite the use of aborted fetal tissue in the development, production, or testing of all currently available COVID-19 vaccines. For all of them, the mandate forces a choice between their faith and their military service.
Simply because they requested a religious accommodation, the plaintiffs suffered a variety of immediate adverse actions: loss of travel and training opportunities, frozen promotions, and even threats to confiscate their Tridents. These interim adverse actions foreshadowed the ultimate consequences that the government had announced: permanent non-deployability, discharge, and repayment of training expenses likely exceeding $1 million per plaintiff. Indeed, by the time the court issued its preliminary injunction, 29 of the plaintiffs’ accommodation requests already had been denied.
III. The Lack of Religious Accommodations and the Mandate’s Vulnerability
The Navy’s policies and public statements show that denial of religious accommodations is a foregone conclusion. While Navy officials touted a 99.4% vaccination rate and acknowledged their grant of several medical exemptions, they also boasted that no religious accommodation requests have been granted. Indeed, the Navy has not granted a single religious accommodation to a vaccine requirement for the past seven years. The Navy’s openly hostile posture toward religious accommodations contrasts not just with its more receptive posture toward medical exemptions, but also with the categorical carveout for service members who participate in vaccine trials. While religious servicemembers with natural immunity are subject to the mandate, vaccine trial participants—including those who received a placebo and have no immunity against COVID-19—are exempt. This curious carveout is at odds with the Navy’s stated goal of a fully vaccinated force. And in any event, with a 99.4% vaccination rate, the Navy has practically achieved its goal.
In addition, the late timing of the DoD and Navy policies undermines their emergency rationale. In July 2021, the Department of Justice’s Office of Legal Counsel concluded in a published opinion that “section 564 of the [Food, Drug, and Cosmetic Act] does not prohibit public . . . entities from imposing vaccination requirements, even when the only vaccines available are those authorized under [Emergency Use Authorizations].” Even though the federal government believes it has had the authority to mandate COVID-19 vaccinations since at least December 2020, the Navy did not begin doing so until November 2021—almost two years into the pandemic, and eleven months after vaccines became available.
The Court’s Ruling
Represented by First Liberty Institute, the plaintiffs sued under the First Amendment and the Religious Freedom Restoration Act of 1993, and they moved for a preliminary injunction. The court concluded that the plaintiffs were likely to succeed on their claims, and it enjoined the defendants from imposing their vaccine mandates against the plaintiffs or otherwise taking adverse action against them due to their religious accommodation requests.
The court first turned to the threshold issue of justiciability. It acknowledged that under Mindes v. Seaman, courts in the Fifth Circuit generally “refrain from reviewing internal military affairs” except where a plaintiff has alleged a deprivation of a constitutional or statutory right and has exhausted “available intraservice corrective measures.” Here, of course, the plaintiffs had alleged the deprivation of constitutional and statutory rights.
As to exhaustion, the court concluded that “the record indicates the denial of each request is predetermined” and thus “exhaustion is futile.” It noted the Navy’s public admission that it has granted no religious accommodations for the COVID-19 vaccine (or any vaccine in the past seven years). But the court also pointed to a smoking gun—the Navy’s “fifty-step process” that it uses to process accommodation requests. According to this Navy guidance document, administrators “update a prepared disapproval template with the requester’s name and rank,” and the denial letter is then reviewed by seven offices and packaged for final signature, along with a memo to a vice admiral asking him to sign a disapproval letter. Only at step 35 in the process “the administrator is told—for the first time—to read through the religious accommodation request.” But by then, “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 [the vice admiral] disapprove the religious accommodation request.” Critically, “[a]t no point in the process is the administrator given the opportunity to recommend anything other than disapproval.”
In short, as the court found, the Navy’s “religious accommodation process . . . is theater,” and “the Plaintiffs’ requests are denied the moment they begin.”
But even if exhaustion weren’t futile, the court concluded that intraservice remedies are inadequate. Any plaintiff granted a religious accommodation would be permanently barred from deployment and thus would lose bonuses, special pays, and promotion opportunities. Moreover, several plaintiffs were told that they would have to forfeit their SEAL Tridents. The most that the plaintiffs could hope for was “second-class status in a peerless community”—hardly an adequate administrative remedy.
The court then weighed the factors applicable under Mindes—including the strength of the plaintiffs’ challenge—and concluded that the case was justiciable.
II. Likelihood of Success
On the merits, the court concluded that the plaintiffs would likely succeed on their RFRA claim. Because the mandate forced them to “decide whether to lose their livelihoods or violate sincerely held religious beliefs,” it substantially burdens their exercise of religion. The court then held that the government flunked RFRA’s demanding strict scrutiny standard because it failed to demonstrate that the mandate furthers a compelling interest.
First, the Navy couldn’t “demonstrate a compelling interest in vaccinating these particular Plaintiffs”—the “individualized assessment” that RFRA requires—because the plaintiffs all had “safely carried out their jobs during the pandemic” using alternatives to vaccination. This included deployments and large-scale trainings. One plaintiff had even received a medal for “safely navigating restricted movement and distancing requirements” under the Navy’s “COVID-19 protocol in early 2020.”
Second, even putting aside the individualized assessment that RFRA demands, the Navy already had “achieved [its] goal” of “widespread vaccination of its force.” “With a 99.4% vaccination rate” among active servicemembers, “the Navy’s herd immunity is at an all-time high.” Moreover, “[s]everal Plaintiffs have tested positive for antibodies, showing the presence of natural immunity.” And even where vaccination and natural immunity may fail, “COVID-19 treatments are becoming increasingly effective at reducing hospitalization and death.”
Third, the Navy had granted “exemptions for non-religious reasons,” including “carveouts for those participating in clinical trials and those with medical contraindications and allergies to vaccines.” The court noted that “a clinical trial participant who receives a placebo may find himself ill in the high-stakes situation that Defendants fear,” and this underinclusiveness in the mandate fatally weakens the government’s interest.
Because it concluded that the defendants lack a compelling interest, the court declined to “address whether Defendants have used the least restrictive means.”
B. First Amendment
The court next turned to the plaintiffs’ First Amendment claim, concluding that it, too, would likely succeed. It held that the mandate “is not neutral and generally applicable.” This was so for two reasons. First, “by accepting individual applications for exemptions,” the mandate “invites an individualized assessment of the reasons why a servicemember is not vaccinated.” Second, by allowing medical exemptees and clinical trial participants—but not those with religious accommodations—to remain deployable, the mandate singles out religious exercise for disfavored treatment.
Because the mandate is not neutral and generally applicable, it “triggers strict scrutiny under the First Amendment.” And for the same reasons it fails RFRA’s strict scrutiny, it also fails the First Amendment’s.
III. Irreparable Harm, Balance of Harms, and Public Interest
Finally, the court analyzed the remaining preliminary injunction factors and held that they likewise favor the plaintiffs. The loss of constitutional and statutory religious freedoms, the court held, constitutes irreparable injury. And “[t]he Plaintiffs’ loss of religious liberties outweighs any forthcoming harm to the Navy.” With all the factors favoring the plaintiffs, the court granted their motion for preliminary injunction.
Significance of the Court’s Ruling
The court’s ruling is noteworthy for several reasons:
1. First of its kind and roadmap for further challenges. Before Judge O’Connor’s decision, no other court had granted relief against a military COVID-19 vaccination mandate. District courts across the country—in Colorado, Oklahoma, New York, twice in Florida, and Washington D.C. —generally denied relief to servicemembers on either ripeness or exhaustion grounds, declining to intervene while accommodation requests moved through the military’s internal processes. But as Judge O’Connor explained, this case was different because the plaintiffs had introduced uncontroverted evidence that the Navy’s “religious accommodation process . . . is theater,” and the Navy “merely rubber stamps each denial.” The case provides a roadmap for other litigants in overcoming the ripeness and exhaustion concerns that elsewhere have animated denials of relief.
2. Smoking gun showing the accommodation process “is theater.” In concluding that the plaintiffs’ claims were justiciable and not exhaustion-barred, the court not only relied on the public statements of Navy officials, but also pointed to a smoking gun—the Navy’s “fifty-step” document described above. As the court found, this document confirms that the Navy’s religious accommodation process is a sham, and denials are predetermined. We can expect the document to be cited by other Naval service members who challenge the lack of religious accommodations. And if other branches have circulated similar guidance documents, we can expect them to surface in future litigation as well.
3. Rejection of the government’s proffered interest. Rather than assume that the government’s proffered interest was compelling and then ask whether the policy was sufficiently tailored—as many other courts have done when examining First Amendment challenges to COVID-19 policies—the court rejected the government’s interest as inadequate and declined to reach the tailoring issue. In other words, the Navy’s vaccine mandate failed the straight-face test. That the plaintiffs prevailed on a lack of compelling interest shows the strength of their case, and it may forecast more litigation success for other servicemembers with religious objections to vaccination. Going forward, it also might predict fairer seas for vaccine mandate challengers in other contexts—especially as immunity levels increase, treatment options become more widely available, and governments continue to loosen restrictions. Justice Gorsuch noted in a recent dissent that the government’s interest in “[s]temming the spread of COVID-19 . . . cannot qualify as [compelling] forever,” and “civil liberties face grave risks when governments proclaim indefinite states of emergency.” Along with the Supreme Court’s stay of the OSHA mandate, this case may mark spark a trend in which courts start applying that principle to COVID-19 vaccination mandates.
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