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Navy SEALs ask Supreme Court to intervene in COVID vaccine mandate battle

Members assigned to Naval Special Warfare Group 2. (U.S. Navy photo by Mass Communication Specialist 2nd Class Russell Rhodes Jr.)
March 16, 2022

A group of U.S. Navy SEALs and other Naval Special Warfare service members are asking the U.S. Supreme Court to uphold an injunction that temporarily blocks the U.S. Navy from enforcing the COVID-19 vaccine mandate.

The group of 35 Navy plaintiffs includes 26 Navy SEALs, multiple Special Warfare Combatant Craft Crewmen (SWCC) and Navy Divers, and an Explosive Ordnance Disposal (EOD) Technician and is being represented by the First Liberty Institute. The plaintiffs initially sued the Navy for not granting religious accommodations to the military-wide vaccine mandate.

Judge Reed O’Connor, of the U.S. District Court Texas’ Northern District, first granted an injunction for the group of plaintiffs in January. The Fifth Circuit Court of Appeals has since upheld the injunction. Last week, President Joe Biden’s administration brought the issue before the Supreme Court, asking for it to overturn the injunction, arguing O’Connor’s ruling “usurps the Navy’s authority to decide which servicemembers should be deployed to execute some of the military’s most sensitive and dangerous missions.”

On Monday, the group of Navy plaintiffs responded to the Biden administration’s filing.

“The preliminary injunction at issue does not require the Navy1 to deploy any of the thirty–five plaintiffs—U.S. Navy SEALs and Naval Special Warfare personnel honorably serving our country. Both the district court and the Fifth Circuit confirmed that,” the filing begins. “The injunction merely preserves the status quo while this case is litigated. Far from supplanting military judgment, the injunction retains the judgments the Navy already made in terms of plaintiffs’ jobs, pay, and training.”

The plaintiffs further note that the Navy remains opposed to their requests for religious exemptions to the vaccine despite having already granted non-religious exemptions.

“Despite over 99% of the Navy being vaccinated, the Navy has not granted a single religious exemption for the COVID-19 vaccination to any active or reserve duty servicemember while granting hundreds of exemptions for secular reasons, including to other members of Naval Special
Warfare,” the response filing reads.

Indeed, as of Wednesday, the Navy had approved 12 permanent medical exemptions to the COVID-19 vaccine mandate, 212 temporary medical exemptions and 26 more administrative exemptions.

The Navy plaintiffs argued, “servicemembers or contractors unvaccinated for secular reasons—whether temporarily so or not—present the same risk as plaintiffs who are unvaccinated for religious reasons.”

As of last week, all other U.S. military have granted at least one religious accommodation to the vaccine mandate. The U.S. Marine Corps was the first U.S. military branch to approve any religious exemption and, as of last week, has approved six such religious exemptions. The U.S. Air Force was the second U.S. military branch to approve any religious exemptions and now leads on that front with 19 approved religious exemptions as of Tuesday. Last week, the U.S. Army became the third service branch to approve a religious accommodation for an active service member.

The U.S. Navy has technically approved a religious accommodation to its COVID-19 vaccine mandate, but that accommodation is only for a member of the Individual Ready Reserve (IRR). The accommodation is also conditional and would cease to exempt the service member from the vaccine mandate if they were ever called up to a more active military component.

Calling up the IRR to active service technically requires a president to make an emergency declaration, in line with 10 U.S. Code § 12302. President Donald Trump issued such a declaration in March 2020, known as Executive Order 13912. EO 13912 authorized the military to call on Selected Reserve and certain IRR members to assist in the military’s COVID-19 response.

The Navy plaintiffs have argued that the Navy’s comparative lack of religious accommodations for the vaccine mandate is evidence of the service “rubber stamping” denials without regard for individual circumstances.