Federal Court Temporarily Blocks Discipline of Military Officers for Religious Refusal of COVID Vaccine

Harboring a religious objection to the COVID-19 vaccine, service members of each branch of the military, federal employees, federal contractors, and employees of federal contractors, sued on behalf of a putative class and promptly moved to temporarily restrain and to preliminarily enjoin military directives and executive orders requiring COVID-19 vaccination but allowing requests for religious and other exemptions…. An October 18, 2021 scheduling order (Doc. 9) observes that a temporary restraining order directed to the putative class will likely not issue, but the October 18 order states that the plaintiffs may move on behalf of an individual service member subject to a circumstance markedly more acute than the other members of the putative class….

[My] November 22, 2021 order denies a preliminary injunction for the non-service members, defers resolving the motion on behalf of the service members, and requires the defendants to submit on January 7, 2022, a notice containing for each branch of the armed forces information about, among other things, the number of pending requests for religious and other exemptions and the number of requests denied after final appeal….

The plaintiffs filed a motion to amend their complaint on January 20, 2022. On January 21, 2022, the plaintiffs—in accord with the November 22 order—submit[ted] a supplemental memorandum in support of a preliminary injunction…. At 6:18 p.m. on February 1, 2022, the plaintiffs moved for a temporary restraining order on behalf of two service members allegedly confronting imminent removal from a position of command….

The service members moving for a temporary restraining order comprise a Commander Surface Warfare Officer in the Navy and a Lieutenant Colonel in the Marines….

The Navy Commander is the commander of the guided missile destroyer. Navy Commander joined the Navy in 2004 and has served for more than seventeen years…. The appeal of Navy Commander was denied by the Chief Of Naval Operations on January 28th 2022. This is the final appellate authority in the Navy. [of the rejection of a religious exemption].

According to the appellate denial letter, Navy Commanders’ “religious beliefs” are genuine and they would not be significantly burdened. The letter, however, states that among other things it “accompanies substantial burdens” and is based on Navy Commander’s “religious beliefs”.[a]It would be a “predictable and harmful effect on the readiness for you and those Sailors who serve with you”, and that any other preventative measures which the Navy Commander requires of his sailors, as well as immunizations, are not 100% effective. The letter declines to mention that the Navy has granted 270 medical exemptions and fails to explain the unsuitability of the alternative precautions afforded the recipients of a medical exemption….

Lieutenant Colonel 2 works as a logistician at Marine Forces Special Operations Command Camp Lejeune in North Carolina. Lieutenant Colonel enlisted in the Marine Corps in 1997…. Prior to joining the Marine Corps, Lieutenant Colonel 2 was subjected to an abortion following a rape. The experience led Lieutenant Colonel 2 into strong religious opposition against abortion and vaccines containing fetal cell line. The denial letter [as to Lieutenant Colonel 2’s appeal of the denial of her religious exemption], … the Assistant Commandant questions whether receiving the COVID-19 vaccine substantially burdens a religious belief because Lieutenant Colonel 2’s objections to the COVID-19 vaccine “could be made for every FDA approved vaccine [she has]”Received” by the military. Furthermore, the Assistant Commandant concluded that COVID-19 vaccination “substantially burdens” a religious belief and denied Lieutenant Colonel 2’s request. The denial letter declines to mention that the Marines have granted 234 medical exemptions and fails to explain the unsuitability of the alternative precautions afforded a recipient of a medical exemption….

The order deferring the motion for a preliminary injunction contemplated that some exigent circumstance might require more narrow and interim relief to preserve, pending the outcome of pending matters, the rights of a service member otherwise subject to some adverse action by the military because of the military’s denying, allegedly in violation of RFRA, a service member’s request for a religious exemption….

This action’s record and its attendant circumstances supports the motion made by two service member plaintiffs. This relief will preserve the status quo for one week in order to allow the parties a fair and reasonable opportunity to hear and make any additional submissions. The hearing on further preliminary relief as a result of the pending motion will occur on FEBRUARY 10, 2022 ….

It is clear that these service members will prevail in their claims that COVID-19 vaccinations were wrongfully denied them by their respective military branches. This record strongly suggests that services discriminatorily deny religious exemptions. They do so without a fair hearing. The showing required by RFRA is not necessary.

The results shown in the record are difficult to explain. It is clear that the military knows how weak their defenses of their methods are. These arguments are both procedural as well substantively rejected in an action distinct to this. U.S. Navy Seals 1–26, et

al v. Biden (N.D. Tex. Jan. 3, 2022. (Characterizing the military’s consideration of religious exemption requests in “theater” and providing relief for service member plaintiffs. This action is most likely to be rejected on the same basis or more extensive, especially if the current conduct of the military is continued.

Two moving service personnel face (1) most likely-unlawful removal of their status and standing as United States military officers, and/or (2) the deprivation their Constitutional and Statutory rights to Free Exercise, and the right to receive religious exemption, unless they can prove that the military bears the burden of proof. The military is unlikely to be able to do so. The military, on the other hand faces little to no risk of material injury if they allow service members to continue service with the same conditions, privileges, and emoluments that currently exist. This is especially true since the military allows a large number of people who are not vaccinated to do so without any adverse consequences.

The military may not be able to and has never established that allowing a relatively small number RFRA objectors (much less those at issue in this motion), to serve with no adverse consequences to the standing of them and their terms and conditions will negatively affect the public interest in maintaining and preparing the country’s military forces. The public is interested in keeping the nation’s military forces staffed with highly skilled, trained, patriotic and courageous service personnel, like the two moving troops, for whom there has been a huge financial investment. They are also not easily replaceable.

Through February 11, 2022 the Secretary of Defense, and all persons acting together with him as described in Rule 65 Federal Rules of Civil Procedure prohibit the Navy Commander and Lieutenant Colonel 2 from changing or diminishing their current status, including their assignments, privileges and rank. In short, Navy Commander and Lieutenant Colonel 2 must remain “as is” throughout the duration of this injunctive relief….