Supreme Court Issues Stay, Favoring Navy, in Navy Seals COVID Vaccination Religious Exemption Case

The present day Austin v. U.S. Navy Seals 1–26The Supreme Court kept the “[t]he district court’s January 3, 2022 order, insofar as it precludes the Navy from considering respondents’ vaccination status in making deployment, assignment, and other operational decisions … pending disposition of the appeal in the United States Court of Appeals for the Fifth Circuit and disposition of the petition for a writ of certiorari, if such writ is timely sought.” The Fifth Circuit previously denied the stay. Justice Kavanaugh of the majority did explain their reasoning but Justice Kavanaugh didn’t.

The Court granted the Government’s request for partial stays of District Court’s preliminary order. This is for one simple reason. Article II states that the Commander-in-Chief of Armed Forces, and not any federal judge in America, is the President of United States. This fundamental constitutional principle means that courts have traditionally been reluctant to interfere with the Executive’s authority in national and military affairs. The Court has repeatedly emphasized that the Court cannot interfere with the Executive’s authority in military and national security affairs. Furthermore, “complex, subtle and professional” decisions regarding the composition, training and equipping of military forces are professional military judgements. It is therefore difficult to imagine a governmental area in which courts are less competent. …

[E]While we accept that RFRA is applicable in this specific military context, RFRA doesn’t justify judicial interference in military affairs. That is because the Navy has an extraordinarily compelling interest in maintaining strategic and operational control over the assignment and deployment of all Special Warfare personnel—including control over decisions about military readiness. This interest would be satisfied by no less restrictive measures.

The Court “should allow the President to exercise the broadest latitude to continue his function to command the national forces, at most when he is facing the outside world in the interest of the security of the society”. The same fundamental principle is applicable here. Admiral William Lescher of Naval Operations explained, “Sending ships to combat without optimizing the crew’s chances of success, as the case would be with ship deficiencies ordnance radar working weapons or the means of reliably accomplishing the mission, are derelictions of duty.” Unvaccinated personnel must not be allowed to enter an environment that could endanger their life, others’ lives or compromise the accomplishment of vital missions.

I believe there’s no justification for a military commander to think that using the judiciary power would compromise the United States military as it protects its citizens.

As I understood it Justice Kavanaugh doesn’t argue that Presidents have exclusive power here. Article I gives Congress the power to “To make Rules For the Government and Regulations of the Land and Naval Forces.” RFRA may be such a rule as it applies to military operations. Instead, he is arguing that the courts should be cautious about preempting any Executive judgments in regards to military operations.

Justices Thomas and Alito would have rejected the application. Justice Alito explained this reasoning, along with Justice Gorsuch.

It is not surprising that the result of the procedure was so successful given its nature. Although more than 4,000 exemption requests had been submitted by February 15, 2022, not a single one had been approved when the complaint in this case was filed….

Let me explain. The Court’s order basically gives the Navy the authority to do what it wants. carte blancheTo store respondents during the appeals process which can take many years. There is no justification for this unexplained and potentially career-ending disposition….

In order to obtain a stay, the Government must show, among other things, that it is likely to succeed in defeating respondents’ RFRA and free exercise claims, and it cannot make that showing….

RFRA clearly states that all Federal Government components are prohibited from imposing burdens on a person’s religious exercise unless they can show that it is the most restrictive way to further a compelling interest. The Government does not claim that Article II imperatives absolve the Navy’s chain of command from complying with RFRA, and it concedes that the statute applies to the military….

It is clear that respondents would find it difficult to comply with the mandatory vaccination requirements. So, we must now ask (1) whether Navy’s mandated vaccination program serves compelling interests and (2) if respondents’ exclusions are the best way of furthering these interests.

As to the first question, I agree that the Navy has a compelling interest in preventing COVID–19 infection from impairing its ability to carry out its vital responsibilities, as well as a compelling interest in minimizing any serious health risk to Navy personnel. However, the Navy’s refusal to grant respondents requests for religious exemptions in its summary was not the best way of advancing those goals. There are at least two reasons why this is the case.

First, there is no evidence that the Navy really considered respondents’ requests. Second, it was not necessary for the Navy to do so. This Court will not tolerate this treatment in any other situations, it is impossible to believe. Let’s say, for example that federal agencies handled complaints from employees about discrimination based upon race, sex or disability. It used a 50-step procedure in which rejection was presumptive until the last step. And suppose the records showed that nearly all of these procedures resulted in a denial. We would be outraged—and rightfully so. The Court seems willing to overlook what has occurred in this instance.

Second, even though we disregard the Navy’s actions and acknowledge the Justice Department lawyers’ justifications for denials later presented in court, relief the Court has now granted goes far beyond what can be considered the most restrictive means to further compelling Navy interest. The Government focuses mainly on Seal missions. It emphasizes certain aspects of Seal missions such as small units, frequent work at close quarters and inaccessible places. Due to those characteristics, the Government argues, there is a heightened danger that the COVID–19 virus will spread, as well as a special need to minimize the risk that a mission will be compromised by a sick team member who is unable to perform assigned tasks with maximum effectiveness.

To win the trial it wouldn’t suffice for the government to claim that an unvaccinated Seal was sent on this mission in order to gain victory mayThese consequences can be fatal. The Navy’s view is not sufficient for a court to accept. It would be too simplistic or speculative to allow a court to simply ignore it. It would be up to the Government to show that mandatory vaccinations are the most restrictive way of advancing the government’s interest. This is based on the current nature of the pandemic and what we know about its spread and effectiveness, the prevalent practices and the physical characteristics and Navy Seals as well as other members of the Special Warfare Community.

While it remains to see if the Government is able to show the required showing, the purpose of the emergency relief application that I consider, the Navy has to stop sending unvaccinated seals on missions as described by the Government. Participating in such missions isn’t the only thing respondents do. The Court has now granted relief to the Government that goes even further. It is using Government terminology, and the Court has stayed the preliminary order with regard to “deployment”, assignments and other operational decisions.

Although the Government does not know what the terms are, without contrary guidance we can assume they will be interpreted according to the Department of Defense Dictionary of Military and Associated Terms. These terms allow the Navy to do anything the Navy wants, except for punishing the respondents and driving them out.

Definition of “Deployment”: “[t]”The movement of forces in and out of an operation area.” This seems to refer to any “geographic areas”.[a]”Where the Navy may carry out “a tactical, strategic, operational, tactical, military service, training or administrative mission” Deploying a person to another country for administrative or training purposes could be considered a deployment.

Assignment appears to mean a specific assignment that requires the individual to fulfill any additional duties beyond a temporary one. A “operational determination” could also refer to the execution of any “strategic and operational, tactical or service-training, or administrative military mission.”

All this suggests that the Court allowed the Navy the right to use the respondents’ non-vaccinated status to direct them to carry out whatever duties and functions it wants. This includes sitting in a single room reading manuals or pushing paper around. Article III gives the Court the power to determine whether or not the Government has demonstrated a compelling need for equitable relief. It hasn’t done this.

The Government’s language proposal would not be approved by me. Although I don’t think the Navy should be granted any relief at this point, I do worry about the possibility of judicial interference in sensitive military decisions making. Granting a substantial measure of deference to the Navy, I would limit the order to the selection of the Special Warfare service members who are sent on missions where there is a special need to minimize the risk that the illness of a member due to COVID–19 might jeopardize the success of the mission or the safety of the team members. This, I believe, was the aim of the District Court, and respondents themselves understand the preliminary injunction that way….

The Free Exercise Clause claims of respondents are likely to be successful as well. Our case law states that if the Federal Government, or a State, treats religious conduct less favourably than secular conduct, it is unconstitutional unless “strict scrutiny” can be satisfied by the applicable jurisdiction, which is essentially identical to the standard imposed under RFRA.

This is the “[o]Review of military regulations that have been challenged under First Amendment grounds is not deferential. However, it does not render nugatory the First Amendment guarantees in the military context. Goldman v. Weinberger (1986). “This Court has never held … that military personnel are barred from all redress in civilian courts for constitutional wrongs suffered in the course of military service.”

Service members applying for medical exemptions were treated more favourably by the Navy than those seeking religious exemptions. For one thing, requests for medical exemptions were seriously considered, and quite a few were granted, at least on a temporary basis…. “[T]he Navy acknowledges that it has granted hundreds of medical exemptions from the COVID–19 vaccine, at least 17 of which were temporary medical exemptions for those in Naval Special Warfare” …. Service personnel who have medical exemptions will not be subject to the Court’s orders as are respondents. App. 42a. The District Court also found that Navy policy allowed those who participated in clinical trials, as well as those suffering from medical conditions or allergies, to remain deployable. This was not the case for those seeking religious accommodation. Navy does not want to give different accommodation treatment to accommodate requests with identical results. I would therefore specify in the Court’s order that the Navy must provide equal treatment for all unvaccinated service members….

Respondents’ First Amendment Rights and RFRA Rights are ignored by the Court. Yesterday, however, another Court decision was handed that highlights the protection of religious liberty provided by strict scrutiny and the framework under RFRA. The decision in question, Ramirez v. Collier. This involved a convicted killer awaiting execution and his rights according to the Religious Land Use and Institutionalized Persons Act of 2000. The latter, which requires that prisons comply with the RFRA standards, essentially, essentially, requires them to be incarcerated.

Ramirez said that his freedom to practice religion would be affected if Texas doesn’t allow him to have his pastor pray with him as he executes. Ramirez requested religious accommodations but was not punctilious nor consistent. The Court granted Ramirez’s request. Texas objected against Ramirez’s request, claiming that the priest’s conduct could interfere with execution. But the Court found that the State had failed to fulfill its duty to support the possibility of such harm.

Our decision to in RamirezYesterday’s Court treatment of respondents is quite striking, as well as the Court’s today. Ramirez’s rights were protected by us. That is the law. Respondents deserve no less.