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Supreme Court lets Biden DoD block unvaccinated SEALs from deploying

Members assigned to Naval Special Warfare Group 2. (U.S. Navy photo by Mass Communication Specialist 2nd Class Russell Rhodes Jr.)
March 28, 2022

On Friday, the U.S. Supreme Court agreed to let the Department of Defense block U.S. service members from deploying if they have not received the military’s mandatory COVID-19 vaccines ordered by President Joe Biden.

The Supreme Court issued a partial stay to a lower court order that blocked the military from taking any punitive action — including blocking service members from deploying — during their ongoing lawsuit challenging the military-wide vaccine mandate. The case was brought by the religious liberty organization First Liberty Institute on behalf of 35 service members, including 26 U.S. Navy SEALs and other Naval Special Warfare service members.

The 35 service members sued the Navy, challenging the service over its refusal to grant any religious accommodations to the 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, blocking the military from taking any punitive actions while their case proceeds. The Fifth Circuit Court of Appeals later upheld that injunction.

Earlier this month, Secretary of Defense Lloyd Austin brought the issue before the Supreme Court, asking it to overturn part of the injunction, arguing the lower court’s decision “usurps the Navy’s authority to decide which servicemembers should be deployed to execute some of the military’s most sensitive and dangerous missions.”

“In this case, the District Court, while no doubt well-intentioned, in effect inserted itself into the Navy’s chain of command, overriding military commanders’ professional military judgments,” Justice Brett Kavanaugh wrote, in agreement with the court’s majority. “The Court relied on the Religious Freedom Restoration Act. But even accepting that RFRA applies in this particular military context, RFRA does not justify judicial intrusion into military affairs in this case. 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.”

Kavanaugh wrote that Article II of the constitution states that the President is the Commander in Chief of the military and, “In light of that bedrock constitutional principle, ‘courts traditionally have been reluctant to intrude upon the authority of the Executive in military and
national security affairs.’”

Lawyers for the 35 service members argued the military’s grounds for not deploying those unvaccinated service members were undercut by the fact that many of them had been deployed during the pandemic but before vaccines were available and that those granted non-religious vaccine exemptions posed the same risk of transmitting the virus as anyone granted a religious exemption.

“The evidence shows that before those requests, the Navy assigned plaintiffs to their current duty stations and even successfully deployed
many of them during the pandemic despite vaccination status,” the plaintiffs wrote. “But the Navy has not granted a single request for religious accommodation for any servicemember, though it has granted hundreds of non-religious exemptions. While judges should not presume to run the military, neither may courts turn a blind eye to violations of the Constitution or the Religious Freedom Restoration Act (RFRA). And the Navy cannot cloak its desire to punish plaintiffs for requesting religious accommodation in claimed ‘operational’ needs without judicial scrutiny.”

Justices Clarence Thomas, Samuel Alito and Neil M. Gorsuch also dissented from the court’s majority decision.

Alito wrote the order from the Supreme Court’s majority “essentially gives the Navy carte blanche to warehouse respondents for the duration of the appellate process, which may take years. There is no justification for this unexplained and potentially career-ending disposition.”