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Judge temporarily blocks military from punishing 2 unvaccinated officers

A gavel cracks down. (Airman 1st Class Aspen Reid/U.S. Air Force)
February 07, 2022

A federal judge last week blocked the military from punishing two officers who objected to the military-wide COVID-19 vaccine mandate on religious grounds.

In a Feb. 2 decision, Judge Steven Douglas Merryday of U.S. District Court for Florida’s Middle District, granted an emergency injunction on behalf of a U.S. Marine Corps lieutenant colonel and a Navy commander, barring the military from punishing the two officers for being unvaccinated.

The temporary injunction is in place until at least Feb. 11. A new hearing in the case is scheduled for Feb. 10.

The two officers are part of a larger lawsuit on behalf of several military officers from the different service branches brought by the non-profit religious liberty advocacy group, Liberty Counsel. The advocacy group was able to win the emergency injunction for the Marine and Navy officers, based on their perceived risk of “immediate harm” from their commands.

According to Liberty Counsel, the Marine officer faced immediate harm by Feb. 2, because her request for a religious accommodation to the vaccine mandate had been denied and she was scheduled to be added to an Officer Disciplinary Notebook. The Marine officer was also set to see her command selection withdrawn, which Liberty Counsel said would be “irreparably damaging” to her military career.

The Navy commander was set to face disciplinary action by Feb. 3, “at which time he would have been removed from command of his ship, irreparably damaging his career because he was denied a religious exemption from the COVID shot,” Liberty Counsel said.

In granting the injunction, Judge Merryday noted that the military has already granted medical exemptions for the COVID-19 vaccine and questioned why the officer’s respective services hadn’t granted their religious exemptions. He also questioned how those services would be at an increased risk from COVID-19, given the medical exemptions they have already approved.

“The record in this action establishes that the two service members are very likely to prevail on their claim that their respective branch of the military has wrongfully denied a religious exemption from COVID-19 vaccination,” Merryday wrote. “The record 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 [Religious Freedom Restoration Act] (while simultaneously granting medical exemptions and permitting unvaccinated persons to continue in service without adverse consequence).”

Merryday said the two officers face either “a most-likely-unlawful deprivation of their accumulated status and standing” in the U.S. military, or “deprivation of their constitutional and statutory rights to Free Exercise and the statutory right to receive a religious exemption.” Merryday said the military, by comparison, “faces a trivial, if any, prospect of material injury as a result of permitting the service members” to continue serving with a religious exemption to the vaccine.

Merryday also noted the military “has not and likely cannot” meet the burden of proof to reject the officer’s religious objections to the vaccine mandate.

The successful injunction in this case comes about a month after a federal judge in Texas granted an injunction, blocking the military from taking punitive actions against 35 Naval Special Warfare service members as they sue to have their religious accommodations for the vaccine mandate approved. Last week, the plaintiffs asked the judge to hold the Navy in contempt of the court, alleging the service has continued efforts to punish the service members despite the injunction.