Preliminary Injunction Bars Forced Retirement Based on Air Force Officer’s Religious Refusal of Vaccination

Your religious beliefs may be sincere. However, military service is not compatible. It’s as simple as that.

{Plaintiff’s chain explains why she wasn’t granted a religious exemption to a COVID-19 shot. True, he undoubtedly spoke for himself, but when considering the Air Force’s abysmal record regarding religious accommodations requests, it turns out he was dead on target.}

Plaintiff is a United States Air Force Officer who seeks an injunction under the First Amendment and the Religious Freedom Restoration Act. This will protect her against our mandatory COVID-19 vaccine requirement. Although the Air Force claims to provide a religious accommodation process, it proved to be nothing more than a quixotic quest for Plaintiff because it was “by all accounts, … theater.” U.S. Navy SEALs 1–26 v. Biden (N.D. Tex. Jan. 3, 2022. (O’Connor J. describes the Navy’s religious accommodation procedure. Plaintiff’s Complaint revealed that despite thousands of religious exemption requests, the Air Force had not granted one single one. Why? It’s because, up until two weeks ago it was not clear if a COVID-19 vaccination exemption for religious reasons was compatible with military service.

{“At the close of the hearing concerning Plaintiff’s preliminary Injunction, Court advised the parties that it had closed all evidence pertinent to that relief. Undeterred, Defendants filed the Declaration of Colonel Jason A. Holbrook six days later, informing the Court that “as of February 4, 2022, nine … religious accommodation requests … have been approved within” the Air Force. The Air Force now has a higher percentage of religious exemptions than before, ranging from about 0.024% to 0.00%. It is clear that the Court doesn’t think defendants’ efforts last-minute to add something to the record change their opinion. Col. Holbrook’s declaration, however, doesn’t reveal what the Court needs to know. WhenThese nine exemptions were granted by the Air Force. However, if one examines the COVID-19 data, it is clear that the Air Force has yet to approve any religious exemption as of January 31, 2022. In other words, the Air Force granted these nine exemptions in the last two weeks.}

Air Force defends actions, arguing that military have a strong interest in maintaining the readiness and health of their forces. This interest can be overcome by any legal or constitutional challenge. But even during a pandemic the Constitution is not irrevocable. …

Plaintiff claims that the Religious Freedom Restoration Act requires strict scrutiny [of 1993] because Defendants’ COVID-19 vaccination requirement substantially burdens her sincere religious beliefs…. RFRA states that the government should not “substantially burden a person’s exercise of religion, even if it results in a general rule.”  …

First, Plaintiff must be able to exercise her religion without a COVID-19 vaccine requirement from Defendants. Plaintiff claims that Plaintiff has a “sincere religious belief” that prevents her from receiving any COVID-19 vaccines and that the COVID-19 vaccination requirements of Defendants “place substantial pressure” upon her to modify. [her]Behavior and to be violated [her] beliefs.” When a person is forced to make a choice between her work and her faith, it’s a classic example of “substantial Pressure.” That is exactly the choice Plaintiff alleges the Air Force “forced” her to make—either “abandon[]one of the precepts in her religion or give up “her livelihood.” …

Now, the question becomes whether Defendants can show that the substantial burden placed on Plaintiff’s religion by its COVID-19 vaccination requirement furthers a compelling governmental interest and that vaccination is the least restrictive means to further that interest…. “[S]”Teming COVID-19’s spread” [is] a compelling interest …. However, just because COVID-19 continues to linger, that is not an invitation to “slacken … enforcement of constitutional liberties.”

RFRA expressly allows for “a person to exercise religion.” According to the Supreme Court, RFRA explicitly contemplates “a person exercising religion.” [policy] ‘to the person’—the particular claimant whose sincere exercise of religion is being substantially burdened.” The Court must “look beyond broad-formulated interests,” [such as maintaining the health and readiness of military forces]Consider instead the “assumed harm” of giving exemptions to religious claimants[.]'”

Circumspect as to what the Court must actually consider—the asserted harm of granting specific exemptions to particular religious claimants—Defendants bank on the fact that because Plaintiff’s leadership position demands in-person interaction with other military personnel and members of the public, they have asserted more than a broadly formulated interest. However, Plaintiff’s compelling interest ignores the fact that at least 3300 Air Force members are exempt from being vaccinated. Bottom line, defendants don’t understand why they feel a strong interest in. PlaintiffThe Air Force members who are not vaccinated as well as their counterparts in the Air Force have been vaccinated.

They argue that the Air Force should use the least restrictive methods to prevent the spread COVID-19. According to their argument,[n]The military has a compelling interest to maintain the readiness and health of its troops. One of Plaintiff’s alternatives is adequate.”

First, Plaintiff claims that her willingness to and ability work remotely doesn’t make sense given her “military specific responsibilities.”[.]Plaintiff may have worked remotely, but it is not clear if Plaintiff was able to work in person.[a]Air Force decided that, after her “numerous career experiences,” her role required her to present and lead personally.

Plaintiff has been allowed to visit the base on her own for the past two months. The Air Force allows Plaintiff to do this provided that she follows non-vaccine preventive precautions such as regular testing, wearing a mask, social distancing, and getting regular vaccinations. They argue, however that these preventive measures do not suffice. The defendants argue, for example that they “[m]The scope of the questions is to control the spread [COVID-19]”, and “provide no immunity to a military member infected by the virus.” Plaintiff’s natural immunity argument is not disputed by the service members, who claim that Plaintiff misunderstands the applicable regulations.

The natural immunity of the plaintiff, combined with preventive measures, raises the question whether a COVID-19 vaccination provides more protection. This is especially curious given the number of people who have been and continue to be infected after becoming fully vaccinated and receiving a booster—including the Secretary of Defense, the Chairman of the Joint Chiefs of Staff, and the Commandant of the Marine Corps. Simply put, Defendants have failed to explain why having Plaintiff—a single member of a nearly fully vaccinated Air Force—submit to a COVID-19 vaccine is the least restrictive means to achieve its compelling governmental interest in maintaining a healthy force.

According to the motion, the Court agreed with Plaintiff that defendants have not “shown vaccination is necessary” in relation to alternatives measures.[]”since “the curtailment or free [exercise]”… must actually be required to find the solution.” …

Thus, … the Court finds that it is “Most likely or probable” that Defendants have not shown that taking a COVID-19 vaccine is the least restrictive means available to further the compelling governmental interest of stemming COVID-19 when their chosen means places a substantial burden on the free exercise of religion….

Plaintiff claims that strict scrutiny is required for her First Amendment claim because the COVID-19 vaccine requirement of Defendants treats religious accommodation requests more favourably than secular medical accommodations requests. Plaintiff argues that strict scrutiny must be applied to the COVID-19 vaccine requirement of Defendants because it isn’t neutral towards religion and not generally applicable. Plaintiff’s RFRA claim is expected to be successful. Plaintiff also expects to win her First Amendment case.

“A law[,]”In this example, a vaccine requirement “is not generally applicable” if it encourages the government consider the individual reasons for someone’s conduct and provides a way for individuals to be exempted. Fulton v. City of Philadelphia (2021). A law is also not general applicability when it bans religious behavior and allows secular conduct to undermine the government’s interests in a comparable way. Are you familiar with this?

COVID-19’s vaccination requirements allow service members to deny vaccination for both secular and religious reasons. No matter whether one service member is unvaccinated for a medical reason and another unvaccinated for a religious reason, one thing remains the same for both of these service members—they’re both unvaccinated. In other words: Both of these service personnel pose a “similar risk” for defendants’ strong interest in “[s]temming the spread of COVID-19” within the military….

Since Defendants’ COVID-19 vaccination requirement is neither neutral toward religion nor generally applicable, it is unlikely to pass strict scrutiny—”the most demanding test known to constitutional law.” …