Fifth Circuit Refuses to Let Navy Enforce Vaccination Rules Against Religious Objectors

Start at U.S. Navy Seals 1-26 v. BidenThe Fifth Circuit ruled yesterday in favor of.

Supreme Court pointed out that RFRA offers even greater protection to religious exercises than what is provided under the First Amendment.[]” and that it provides the:

Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.

“[T]He ‘exercises of religion’ can include belief, profession and the performing (or abstaining from) of physical acts.[.]A government regulation or action creates a substantial burden on religious practice if the religious adherent is forced to change his religion in any significant way. Once a plaintiff demonstrates a substantial burden on his exercise of religion, “RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’—the particular claimant whose sincere exercise of religion is being substantially burdened.” This already extremely high standard has been raised to “[w]Here is a rule that provides an exemption from the law to a specific group[.]”

Although the Navy doesn’t dispute the fact that COVID-19 vaccine requirements significantly restrict each Plaintiffs freedom to practice their religions, the severity of the injury deserves special attention. The plaintiffs thoughtfully expressed their religious objections against the vaccine. By forcing them to inject an irremovable substance against their strongest convictions, accepting the vaccine would put a burden on their respective religions. The injury they would sustain will outlast their military service. This makes the choice between their job(s), and their jab(s) far more complicated than choosing between their jobs. They will be unable to rely on the vaccines as they compete with their religious beliefs and, secondarily, their livelihoods. This situation places a significant burden on plaintiffs.

Navy seeks to subordinate Plaintiffs’ protected interests and instead places emphasis on its institutional interests. The defense position is as follows:

The Navy has an extraordinarily compelling interest in requiring that service members generally—and these plaintiffs in particular—be vaccinated against COVID-19, both (1) to reduce the risk that they become seriously ill and jeopardize the success of critical missions and (2) to protect the health of their fellow service members.

As a result, the Navy is able to vaccinate at least 99.4% service personnel. {As the district court explained in denying Defendants’ stay motion, statistically speaking, “vaccinated servicemembers are far more likely to encounter other unvaccinated individuals off-base among the general public than among their ranks.”} But, RFRA states that this general interest is not sufficient. The Navy needs to “scrutinize”.[]The harm that is claimed to be caused by granting exemptions to specific religious claimants.” The question isn’t whether [the Navy has]There is a strong interest in the enforcement of its laws [vaccination]Policies generally but whether there is an actual interest to deny an exception [each Plaintiff].” RFRA is more demanding than that.[]”Rather than deferring “officials’ mere word-of-mouth that they couldn’t accommodate [a plaintiff’s religious accommodation] request.” Because “only the gravest abuses that endanger paramount interests give rise to permissible limitation.”[]” on free religion exercise.

They have not shown “paramount interest” in vaccinating the 35 Plaintiffs for COVID-19, which would be against their religious convictions. The military commanders have concluded that because of the limited units and isolated locations where special-operations forces are often deployed, unvaccinated soldiers are more likely to become severely ill by COVID-19. Therefore they are medically ineligible for deployment. They insist that “Unvaccinated service members are at significantly higher risk of becoming severely ill from COVID-19” and therefore cannot be deployed.[r]outine [Naval Special Warfare]Gunshot wounds are not uncommon. While there’s no evidence the Navy evacuated any of these individuals due to COVID-19, plaintiffs are engaging in potentially life-threatening activities that might pose risks equal or greater to the virus.

More precisely, several Plaintiffs were able to deploy overseas successfully before and after the vaccination became available. One even won a Joint Service Commendation Medal “safely navigating restricted movements and distancing needs” when he was deployed in South Korea from January 2020 through June 2020. {During the deployment [Plaintiff] Navy EOD Technician 1 completed 76 joint service engagements with 21 U.S. and Korean partner forces, all while maintaining effective COVID-19 mitigation tactics in compliance with CDC guidelines.} The plaintiffs provided training to other SEALs in preparation for their deployments at different points during the pandemic, while they remained unvaccinated.

Other facts further undercut the Navy’s claim of compelling interest. The Navy has granted special medical exemptions to 17 Special Warfare servicemen, but no reasons are given as to why they should not be distinguished from Plaintiffs. The vaccine requirements are therefore “underinclusive.” And “underinclusiveness … is often regarded as a telltale sign that the government’s interest in enacting a liberty-restraining pronouncement is not in fact ‘compelling.'” Also see Holt and Hobbs (2015) (a policy was substantially underinclusive where a prison “denied petitioner’s request to grow a ½-inch beard [for religious reasons] [while permitting] prisoners with a dermatological condition to grow ¼-inch beards.”). The Navy has not provided specific reasons to Plaintiffs in any of its letters denials of religious accommodation. {On the contrary, some of the remarks uttered by superior officers to Plaintiffs could be regarded as outright hostile to their desire for religious accommodations.} Additionally, the Navy hasn’t given any religious accommodation. This is a clear indication that they are not considering Plaintiffs’ individual requests and are disregarding RFRA rights. Certainly, if Navy was conscientiously following RFRA it would have chosen the least restrictive ways to allow religious objections for forced vaccinations. For example, personnel at desks, warehouses, and remote locations could benefit from these accommodations.

We agree with the district judge that the Defendants do not have a compelling interest in denying religious accommodation to any of the 35 Plaintiffs. Indeed, the “marginal interest” in vaccinating each Plaintiff appears to be negligible; consequently, Defendants lack a sufficiently compelling interest to vaccinate Plaintiffs….