Services appear to be ‘discriminatorily and systematically denying religious exemptions’
Secretary of Defense Lloyd Austin and all other military officials are barred from taking punitive action against two service members seeking religious exemptions to the military’s COVID-19 vaccine mandate, a federal judge ruled Feb. 2.
The Marine Corps. lieutenant colonel and Navy Command officer appear to have been “wrongfully denied a religious exemption from COVID-19 vaccination,” US District Judge Steven Merryday, a George HW Bush nominee, wrote in a 10-page ruling.
The lieutenant colonel was told she would be disciplined starting Feb. 2 if she did not get one dose of a COVID-19 vaccine, according to court documents.
The Navy officer, meanwhile, was told he would be removed from command of his ship on Feb. 3 if he did not start a COVID-19 vaccination series.
Both saw their religious exemption applications denied and appeals to the denials rejected.
Top military officials determined that the commander’s religious beliefs are sincere and would be “substantially burdened” by being forced to get vaccinated, but also claimed that granting the exemption request “would have a predictable and detrimental effect on the readiness of you and the Sailors who serve alongside you.”
In the Marines case, the lieutenant colonel’s religious opposition to any vaccine developed with fetal cell lines—all three COVID-19 shots cleared by US regulators utilized aborted cells—stemmed from becoming pregnant from a rape, she said in a sworn declaration.
The rejection letter was identical to the letters received by 16 other sailors whose applications were denied despite each sailor getting their request endorsed by the woman, who is the unit’s commanding officer, and each sailor submitting “distinct, personal accounts of our religious practices and the method by which receipt of the COVID-19 vaccine would violate those tenets,” she added.
The denial letter, presented to the court, showed that a Marine official questioned whether getting a COVID-19 vaccine would substantially burden a religious belief because the same objections the lieutenant colonel lodged “could be made for every FDA approved vaccine [she has] received” in the military.
Even if the case could be made of a substantial burden, the official said that “the government’s compelling interests in military readiness and in the health and safety of the force” justified denying the request.
Both the Navy and Marine rejections failed to note that the branches have separately granted hundreds of medical exemptions to the COVID-19 vaccine mandate, Merryday, the judge, wrote.
The record in the case “creates a strong inference that the services are discriminatorily and systematically denying religious exemptions without a meaningful and fair hearing and without the showing required under RFRA (while simultaneously granting medical exemptions and permitting unvaccinated persons to continue in service without adverse consequence ),” he said.
RFRA refers to the Religious Freedom Restoration Act—a law plaintiffs and defendants interpret differently.
The military has not established, and likely cannot establish, “that permitting the relatively small number of RFRA objectors, even if every request for exemption (much less the two at issue in this motion) were sincere and successful, to serve without adverse consequences to their standing and the terms and conditions of their service will adversely affect the public’s interest in the maintenance and readiness of the nation’s military forces,” Merryday added later. “In fact, the public undoubtedly has some considerable interest in maintaining the services of skilled, experienced, highly trained, patriotic, courageous, and esteemed service members, such as the two moving service members, in whom the public has an immense financial investment and who are not, to say the least, readily replaceable.”
The judge blocked punishment of the two members for now and ordered a hearing on Feb. 10 in federal court in Tampa, Florida.
Government lawyers had urged the court to not grant the request for a temporary restraining order, claiming it did not have jurisdiction to decide whether military commanders should remain in their positions.
“Plaintiffs invite this Court to begin judicial oversight of individual assignment, reassignment, and command decisions, asking this Court to enjoin the Navy from removing the commander of a warship and to stop withdrawal of another’s command selection. Such an unprecedented judicial action would damage the military’s interests in readiness, health of service members, and good order and discipline, and the public interest in the national security of the United States,” they wrote in a filing that failed to sway the judge.