Federal Court Temporarily Blocks Discipline of Military Officers for Religious Refusal of COVID Vaccine

"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 RFRA (while simultaneously granting medical exemptions and permitting unvaccinated persons to continue in service without adverse consequence)."

From yesterday's decision by Judge Steven Merryday (M.D. Fla.) in Navy Seal 1 v. Biden, following up on an earlier decision:

Harboring a religious objection to the COVID-19 vaccine, service members of each branch of the military, federal employees, federal contractors, and employees of federal contractors, sued on behalf of a putative class and promptly moved to temporarily restrain and to preliminarily enjoin military directives and executive orders requiring COVID-19 vaccination but allowing requests for religious and other exemptions…. An October 18, 2021 scheduling order (Doc. 9) observes that a temporary restraining order directed to the putative class will likely not issue, but the October 18 order states that the plaintiffs may move on behalf of an individual service member subject to a circumstance markedly more acute than the other members of the putative class….

[My] November 22, 2021 order denies a preliminary injunction for the non-service members, defers resolving the motion on behalf of the service members, and requires the defendants to submit on January 7, 2022, a notice containing for each branch of the armed forces information about, among other things, the number of pending requests for religious and other exemptions and the number of requests denied after final appeal….

On January 20, 2022, the plaintiffs moved to amend the complaint. On January 21, 2022, the plaintiffs—in accord with the November 22 order—submit[ted] a supplemental memorandum in support of a preliminary injunction…. At 6:18 p.m. on February 1, 2022, the plaintiffs moved for a temporary restraining order on behalf of two service members allegedly confronting imminent removal from a position of command….

The service members moving for a temporary restraining order comprise a Commander Surface Warfare Officer in the Navy and a Lieutenant Colonel in the Marines….

Navy Commander serves as the commanding officer of a guided missile destroyer in the Navy. Navy Commander joined the Navy in 2004 and has served for more than seventeen years…. On January 28, 2022, the Chief of Naval Operations, the ultimate appellate authority within the Navy, denied Navy Commander's appeal [of the rejection of a religious exemption].

The appellate denial letter assumes that Navy Commander's "religious beliefs are sincere and would be substantially burdened." However, the letter states, among other things, that "[a] waiver of immunizations would have a predictable and detrimental effect on the readiness of you and the Sailors who serve along side you" and that the other preventative measures, which for the last two years Navy Commander has required of the sailors under his command, "are not 100 percent effective and must be implemented in conjunction with immunization to reduce the risk of mission failure." The letter declines to mention that the Navy has granted 270 medical exemptions and fails to explain the unsuitability of the alternative precautions afforded the recipients of a medical exemption….

Lieutenant Colonel 2 serves as a logistics officer at Marine Forces Special Operations Command at Camp Lejeune, North Carolina. Lieutenant Colonel enlisted in the Marine Corps in 1997…. Before joining the military, Lieutenant Colonel 2 received an abortion after becoming pregnant from rape. This experience caused Lieutenant Colonel 2 to develop strong religious opposition to abortion and to any vaccine developed with fetal cell lines. In the denial letter [as to Lieutenant Colonel 2's appeal of the denial of her religious exemption], … the Assistant Commandant questions whether receiving the COVID-19 vaccine substantially burdens a religious belief because Lieutenant Colonel 2's objections to the COVID-19 vaccine "could be made for every FDA approved vaccine [she has] received" in the military. Further, "assuming that COVID-19 vaccination substantially burdens" a religious belief, the Assistant Commandant concludes that "the government's compelling interests in military readiness and in the health and safety of the force" justifies denying Lieutenant Colonel 2's request. The denial letter declines to mention that the Marines have granted 234 medical exemptions and fails to explain the unsuitability of the alternative precautions afforded a recipient of a medical exemption….

The order deferring the motion for a preliminary injunction contemplated that some exigent circumstance might require more narrow and interim relief to preserve, pending the outcome of pending matters, the rights of a service member otherwise subject to some adverse action by the military because of the military's denying, allegedly in violation of RFRA, a service member's request for a religious exemption….

The record as a whole in this action and the attendant circumstances support the motion by the two service member plaintiffs, and the motion is GRANTED-IN-PART for the following reasons and to the following extent. The purpose of this relief is preservation of the status quo for a week to permit a reasonable and practical opportunity for a hearing and any necessary and additional submissions from the parties. The hearing on further preliminary relief as a result of the pending motion will occur on FEBRUARY 10, 2022 ….

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. 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 RFRA (while simultaneously granting medical exemptions and permitting unvaccinated persons to continue in service without adverse consequence).

One struggles to imagine a wholesome and lawful explanation for the results evidenced in this record. The military is well aware of the frailty of their arguments in defense of their practices. Those arguments both procedural and substantive, are rejected in an action that is distinctively parallel to this action. U.S. Navy Seals 1–26, et

al v. Biden (N.D. Tex. Jan. 3, 2022) (characterizing the military's review of requests for a religious exemption as "theater" and granting relief to the service member plaintiffs). Rejection on the same or a more encompassing basis is likely in this action (especially if the conduct of the military continues along the present lines).

The two moving service members face either (1) a most-likely-unlawful deprivation of their accumulated status and standing in the United States military, as well as prospective advancement and benefits, or (2) deprivation of their constitutional and statutory rights to Free Exercise and the statutory right to receive a religious exemption unless the military can meet the statutory burden of proof, which the military has not and likely cannot. On the other hand, the military faces a trivial, if any, prospect of material injury as a result of permitting the service members continued service under the same terms and conditions and with the same privileges and emoluments as currently prevail, especially because the military permits a large group of unvaccinated persons to serve without adverse consequence.

Finally, the military is most likely unable to establish, and certainly has not established, that permitting the relatively small number of RFRA objectors, even if every request for exemption (much less the two at issue in this motion) were sincere and successful, to serve without adverse consequences to their standing and the terms and conditions of their service will adversely affect the public's interest in the maintenance and readiness of the nation's military forces. In fact, the public undoubtedly has some considerable interest in maintaining the services of skilled, experienced, highly trained, patriotic, courageous, and esteemed service members, such as the two moving service members, in whom the public has an immense financial investment and who are not, to say the least, readily replaceable.

The Secretary of Defense and anyone acting in concert with him, as specified in and to the full extent of Rule 65, Federal Rules of Civil Procedure, is ENJOINED through February 11, 2022, from diminishing or altering in any manner and for any reason the current status of Navy Commander and Lieutenant Colonel 2, including their assignment, privileges, rank, or the like. In short, Navy Commander and Lieutenant Colonel 2 must remain "as is" throughout the duration of this injunctive relief….

Comments

[jst1]

"One struggles to imagine a wholesome and lawful explanation for the results evidenced in this record. The military is well aware of the frailty of their arguments in defense of their practices."

Still, one must follow orders, right?

[Darth Chocolate]

Only lawful orders.

[Hugo S. Cunningham]

Effective soldiering depends on being able to trust the guy to your left, the guy to your right, and the guy behind you to be following the same orders from the same chain of command. Trust breaks down (as does unit effectiveness) if the guy behind you takes "orders" from whatever unfriendly intelligence service is feeding him Internet conspiracy theories this week. This is especially true of officers.

[Noscitur a sociis]

I'll definitely sleep better tonight knowing this is the kind of a guy we put in charge of a guided missile destroyer!

[Armchair Lawyer]

Meaning...what exactly?

Because it sounds like you're being bigoted against people with sincere religious beliefs...

[Noscitur a sociis]

I would stack my credentials as a strident and reflexive antitheist with anyone's, so I certainly hold sincere religious beliefs in contempt, though not necessarily those who hold them. I do, however, have reservations about entrusting the sort of person who would use a patently insincere "religious" belief to cheat his way out of his lawful military obligations with a two billon dollar piece of military hardware and the lives of hundreds of American sailors.

[XD]

"patently insincere" by what metric? do not speak whereof you have no knowledge whatsoever. moron.

[Jason Cavanaugh]

So we can expect you to leave, right?

[Rev. Arthur L. Kirkland]

" people with sincere religious beliefs "

Clingers engage in strenuous gymnastics to avoid any legitimate inquiry concerning sincerity . . . and accept silly claims so long as they are rooted in superstition (and, usually, right-wingery).

[Tempe Jeff]

Cogent explanation for Democrats aversion to majority-black Churches, when on the Campaign Trail.

[A nerdy Fred]

Their sincerity is hard to argue for, given that they accepted all the other vaccinations required in the service, and given that all the major religions and almost all the minor ones permit or encourage COVID vaccination.

[A nerdy Fred]

Would a no-exceptions policy be harder to challenge?

If someone is medically unable to do something required for readiness, then a medical discharge, with honor and full benefits, would seem to fit.

If someone comes up with an authentic religious objection, and I know of one church that forbids vaccinations, it would make sense for the military to treat them just like someone who converts to a religion that forbids warfare.

[A nerdy Fred]

It would be instructive for someone more knowledgeable than me to do a compare-and-contrast with existing precedent.
https://casetext.com/analysis/30-years-since-goldman-v-weinberger-the-yarmulkes-in-the-military-case
A 5-4 Supreme Court agreed with deference to military judgement of what was needed for readiness. If forbidding yarmulkes on duty is permitted in the face of a genuine, documented religious obligation to wear them, then a fortiori shouldn't the same be true of COVID vaccinations?

[Dilan Esper]

For the same reason, I am pretty skeptical of this lawsuit. It seems to me that for a religious claim to prevail against the military, the claimant would need to prove that the accommodation has nothing to do with military readiness at all. For instance, if the army prohibited troops from having a copy of a Bible in their barracks, sure, that would be illegal.

But so long as there's a colorable claim of military necessity, that should be the end of the matter. Especially given the historical precedents in this area- the military has required inoculations since the Revolutionary War.

[Armchair Lawyer]

1. The issue is, they're giving medical exemptions already.

[A nerdy Fred]

And I do see the argument that it's capricious to deny religious exemptions when offering medical exceptions.

On the other hand, a distinction can be drawn between the two based on the impact on readiness. People with PEG allergies or who otherwise medically cannot take the vaccines are a tiny minority. A 99.N% vaccination rate protects a unit almost exactly as well as 100%.

People who get their ideas from Fox News and Joe Rogan are a much higher percentage, and to take a hypothetical number, with 30% unvaccinated COVID can keep spreading and put vaccinated personnel at risk of breakthrough infections. Allowing self-reported religious objections would undermine readiness and would give people an incentive to lie to their superiors.

A policy of exemptions limited to people who could document membership in the Dutch Reformed Church or one with the same doctrines before the anti-vax propaganda started would limit the numbers enough to protect readiness. Last-minute conversions to an obscure church in an effort to avoid a duty would be evidence against sincerity.

[Eugene Volokh]

Dilan: I appreciate your point, and agree with it as a Free Exercise Clause matter (indeed, even if Smith is rejected), see Goldman v. Weinberger. But Congress seems to have thought otherwise in enacting RFRA, which mandated strict scrutiny with no exception for the military. And it seems to me that, though strict scrutiny might often be satisfied in a military context, it would require more than just a "colorable claim of military necessity," no?

[Dilan Esper]

It may be that the correct approach (which I understand won't fly) would be to read a military exception into RFRA and to require a clear statement from Congress to override POTUS' commander in chief powers

[Noscitur a sociis]

But Congress seems to have thought otherwise in enacting RFRA, which mandated strict scrutiny with no exception for the military. And it seems to me that, though strict scrutiny might often be satisfied in a military context, it would require more than just a "colorable claim of military necessity," no?

Wasn't Congress's stated intent to restore the state of the law, as far as possible, to the way things stood before Smith—which presumably would include the Goldman decision?

[Josh R]

My problem remains that SCOTUS has interpreted RFRA's strict scrutiny to be much more strict than the Court applied during the Verner period applied it.

[Noscitur a sociis]

If forbidding yarmulkes on duty is permitted in the face of a genuine, documented religious obligation to wear them, then a fortiori shouldn't the same be true of COVID vaccinations?

That decision does predate RFRA. On the other hand, it also predates Employment Division v. Smith.

[Rossami]

The decision about yarmulkes was actually easier because, to nerdy Fred's point above, it did not have any exceptions. You could disagree with the military's judgement about whether a ban on headgear was necessary for readiness but they didn't contradict themselves in the implementation. The Navy is losing this case not on the stand-alone argument of necessity but on the argument that the many exceptions that they do allow suggest that this one is mere pretext.

Deference, maybe. Blind deference, no.

[Josh R]

Even one of the leading advocates for religious liberty and reversing Employment Division v. Smith, Douglas Laycock, believes the First Amendment does not require a religious exemption to a vaccine mandate even when there is a medical exemption.

[Orbital Mechanic]

So just how many requires vaccines have the plaintiffs had before Covid-19?

If that number is not zero then this assertion of religious exemption is total bullshit. What it actually is are conservative victim snowflakes acting out because they think taking the vaccine is “pro Biden” or some similar MAGA derp.

[Dan Schiavetta]

Exactly. I didn't know that "owning the libs" was an actual religion.

[John F. Carr]

Does the military still require smallpox vaccination?

[Armchair Lawyer]

You really think that?

These people are willing to...or have...lost their jobs and careers due to their religious beliefs.

That would seem pretty sincere to me.

[Orbital Mechanic]

These people are willing to .. or have .. lost their jobs due to what they pretend are their religious beliefs.

There. Fixed it for you.

To get to the point where they have standing to sue -- in other words have the jobs they are losing, they have already been required to have at least the following vaccines: Adenovirus, Hepatitis A, Hepatitis B, Influenza, Measles, mumps, rubella, Meningococcal, Poliovirus, Tetanus-Diphtheria, Varicella. (reference is from Newsweek). More vaccines will be required based on assessed risk.

So perhaps you can identify what religion or, in lieu of that, what religious precept allows all those vaccines but somehow any Covid-19 vaccine is somehow heresy or apostasy.

I can't, except for one: the MAGA/GQP cult.

Seems pretty sincere to me.

[Rossami]

To the best of my knowledge, none of the vaccines on your list were developed using fetal stem cells. (Most couldn't have been because they predated that technology.) The allegation is that the covid vaccines were developed using fetal tissues and thus suffer from the inherited sin of abortion. And whether or not you or I agree with it, there is no arguing with the fact that several religions strongly oppose abortion - yes, even to the point of saying that anything from it is tainted.

Your assumption that everyone who disagrees with you must be doing some from a purely pretextual and political view says more about your views than it does about the people your arguing against.

[Orbital Mechanic]

None of the COVID-19 vaccines contain fetal cells.

Stem cells are used in the R&D process.

Here are some other medications developed with stem cells: Tylenol, Pepto Bismol, Aspirin, Tums, Senokot, Motrin, Maalox, Ex-Lax, Benadryl, Sudafed, Preparation H, Claritin, and others.

It is a sucker bet that the plaintiffs in this case have used, are using, and will continue to use those or other medications developed with stem cells and have no religious conundrum associated with it.

Your willingness to bring up a well debunked pseudo-conservative talking point as a serious argument says more about your views than the people you are arguing against.

[Rossami]

You are confusing my beliefs with the beliefs of those who object to these vaccines. They may be wrong - and if so, you should engage them on that basis. Sneering at people and arguing at strawmen is not generally a good way to get them to change their minds, however.

I will note, by the way, that most of the medications in your second list here could not possibly have been made with fetal stem cells because they long pre-date that technology. Aspirin, for a single example, was purified in 1899 and is derived from willow bark. Stem cell research began in the 1950s. Fetal stem cell research didn't start until the 1980s and even then was only in mice for the first 10 years or so. So you're wrong by roughly a century.

[Orbital Mechanic]

Stem cells are used to test old drugs and new drugs. For safety and different uses. Aspirin is on the list, even though it was developed long ago. Even though Bayer will not acknowledge the actual inventor for reasons "unknown."

So if Covid-19 vaccines are "morally tainted" by the butchery of abortion, so is aspirin and so are many many other drugs.

The defense of "well they don't know any better that's just their beliefs" is a weak one at best.

[Dan Schiavetta]

Rabies, MMR and Hepatitis A vaccines were developed from stem cells. That was years ago. Not a peep from anyone then.

[Noscitur a sociis]

These people are willing to...or have...lost their jobs and careers due to their religious beliefs.

Their decision to file this lawsuit would suggest that they are not, in fact, willing to lose their jobs over their (patently insincere) beliefs.

[XD]

"Their decision to file this lawsuit would suggest that they are not, in fact, willing to lose their jobs over their (patently insincere) beliefs."

they're going to lose their jobs if the lawsuit fails. are you illiterate? and you haven't the first idea about their sincerity, you just cast aspersions wherever you can to own the chuds.

[Noscitur a sociis]

If (when) the lawsuit fails they will have to make a choice about whether to follow their orders or not (assuming the mandate is still in effect, which is far from a given). The vast majority of credulous buffoons who tried this dodge eventually did as they were told, as will most of these plaintiffs.

[ReaderY]

A huge series of precedents would appear to go against this decision, from the “yarmulke case” holding that the military gets extremely differential review for its disciplinary rules under pre-Smith law to the cases holding that federal courts generally abstain from enjoining the military on matters affecting combat readiness to the cases holding that government has a compelling interest in vaccinations even for civilians.

One would have to ignore all that to find for the plaintiffs here.

[Illocust]

As another poster above pointed out. Deference is only due if the military doesn't make a blatant display of the requirement being pretextual. If a requirement is necessary for military readiness then there wouldn't be a medical exemption. Either you need every member of the military vaccinated or you don't.

[Noscitur a sociis]

If a requirement is necessary for military readiness then there wouldn't be a medical exemption.

I don't see how that follows. The military has to compare the state of readiness between three possibilities: 1. The servicemember is vaccinated and continues to serve; 2. The service member is not vaccinated and continues to serve; and 3. The servicemember is discharged. I don't see anything inherently illogical for the military to decide that in cases where an unusual medical vulnerability makes a person likely to have an unusually negative reaction to the vaccine, the normal preference for 3 over 2 is reversed.

[Noscitur a sociis]

Sorry, I reordered the list before posting, should be 1 over 2.

[Rossami]

If the Navy can successfully accommodate the unusual medical vulnerability, why can it not also accommodate the unusual vulnerability based on sincere religious objection? If the need is absolute, then no objections are tolerable. If the need is not absolute, then the government cannot (generally) discriminate based on the source of the objection.

It's worth noting, by the way, that the Navy is alone in this policy. Neither the Army nor Air Force share their policy. And the Navy was specifically asked for and failed to deliver justification for the policy based on any unique needs of that service.

[A nerdy Fred]

Then, just as draft boards weighed whether someone was truly a conscientious objector, the armed services are entitled to judge the sincerity of the claimed beliefs.

[ReaderY]

And thus we see how Smith, a decision initially billed as giving the state more deference than the pre-Smith compelling interest standards, becomes far stricter and gives it far less deference under the Alito interpretation. Under that interpretation, the existence of exceptions doesn’t simply take things back to pre-Smith compelling interest. It trumps it, controls, and requires finding the law unconstitutional.

Since every law has some exception, no law is universal.

If we really took the Alito exception seriously, then if the state allowed self-defense as an exception to murder, it would be engaging in unconstitutional discriminatory pretext if its murder statute didn’t also allow religiously motivated killings. It can’t make an exception for self-defense without also making an exception for religion! That would make the entire murder law pretextual.

And if one isn’t willing to take it that far, then one has to admit there has got to be a flaw in the Alito interpretation somewhere.

Because if you take the Alito imterpretation that seriously, if you say with a straight face that any exception, even one that would have satisfied pre-Smith compelling interest, is a pretext, then frankly that’s what you end up getting.

[Illocust]

A religious exmption to murder would look like saying that if you are allowed to use lethal force to protect your business you are also allowed to use lethal force to protect your church. Self defense laws don't need a religious exemption because they apply equally to everyone no matter their creed.

[Josh R]

Don't medical exemptions apply to everyone as well?

[Illocust]

No, next question?

[Josh R]

Huh? Medical exemptions don't apply equally to everyone no matter the creed? That's news to me.

[Joe_dallas]

Separate and apart from the legal issues is whether the vaccine is even going to be effective.

At this point in the pandemic, the vaccine is solving yesterday's problem. Omicron is now the dominant variant of covid and the current vaccines are only 30% or less effective against omicron after only 2-3 months (vs 50%-60% effective against the delta /alpha strain after 6 months).
In summary, it is pointless to demand something with so little benefit going forward. If delta / alpha/ gamma remained the dominant strain, then there would be a point of requiring the vaccine, but not against omicron.

[Bruce Hayden]

Worse. The vaccines appear to be killing or disabling a lot more military personnel than the virus killed - which has been in the low two digits. Smaller really than some training accidents. This shouldn’t surprise anyone since their personnel are young (mostly 20s) and with few comorbidities (esp obesity). On the flip side, the same fitness that prevents dying from the virus, seems to make them more vulnerable to the vaccines.

The reality then is not that the vaccines increase their readiness (because it likely does the opposite), but rather that the requirement to be vaccinated was completely political in origin. The President ordered it, and his military brass are carrying out his orders.

[David Nieporent]

The vaccines appear to be killing or disabling

exactly nobody. Why do you continue to beclown yourself by lying about the vaccines?

[Bruce Hayden]

I would ask you the same. Elite athletes dropping like flies from heart attacks and brain bleeds, right after being vaccinated. Kids too. Once or twice is happenstance. Hundreds of times is not. There was no rational reason for these people to be vaccinated, yet, under pressure, they were.

Or, is the idea that we all go around with our eyes closed, ears covered, going “la la la” how we keep from beclowning ourselves?

[David Nieporent]

Elite athletes dropping like flies from heart attacks and brain bleeds, right after being vaccinated. Kids too.

Also not happening.

Once or twice is happenstance. Hundreds of times is not lying.

FIFY.

[Jason Cavanaugh]

More Bullshit from Bruce.

Notably absent from your claims: any reputable source whatsoever.

[A nerdy Fred]

Quite a bit better than that with boosters, and Moderna and Pfizer both already have human trials going of omicron-specific vaccines.

[ReaderY]

I’m going to say in a main comment what I said in a reply above.

If a state creates an exception to its murder statute for self-defense, does the First Amendment require it to also create an exception for religiously motivated killings? If not, why doesn’t the existence of the self-defense exception prove that the murder statute is non-universal and indeed, nothing but anti-religious animus? If the state really thought killing people was wrong, it would prohibit it absolutely, no exceptions. If it creates any exceptions at all, that’s proof positive it isn’t really all that important to the state, so it had jolly well better create an exception for religion to.

So behead away, Jihadi John! You’re welcome to practice your faith here in America. The constitution is on your side.

[Illocust]

Repost from above: A religious exmption to murder would look like saying that if you are allowed to use lethal force to protect your business you are also allowed to use lethal force to protect your church. Self defense laws don't need a religious exemption because they apply equally to everyone no matter their creed.

[Illocust]

Also try to remember. Self defense laws aren't an exception to murder laws. Self defense laws state protecting yourself is not murder.

[ReaderY]

Neither of these are real answers.

1. If the state can say that murder in self defense simply isn’t murder, why can’t it equally say that non-vaccination for medical reasons simply isn’t failure to vaccinate, and not in any way an “exception” to the vaccination requirement? Why not reword the vaccination requirement so it’s simply not part of it at all rather than being designated as an exception?

If you can avoid the existence of an exception by something as simple as narrowing the definition of the substantive offense, and doing ao preserves universality, then all the Free Exercise Clause would mean is that government has to be careful about the way laws are worded, nothing more.

For the second issue, let me be clearer. Jones kills Smith because Smith has committed blasphemy, and Jones’ religion says that blasphemers shall be put to death. Jones argues that since the definition of murder doesn’t include self-defense killings, it is not neutral or universally applied, and therefore discriminates agaijst religion and violates the Free Exercise Clause because it doesn’t also include an exception for religious killings.

[ReaderY]

Also, self-defense in many states is an affirmative defense. This means it really is an excption, and not simply not murder.

[ReaderY]

I want to up the ante on the “medical exception case.” Let’s narrow the permitted medical exceptions to extreme cases. Suppose someone has a medical condition that makes them very likely to die if they get the vaccine. Then if this person gets an exception, even in this extreme case, the Free Exercise clause requires the state to also make an exception for religion as well. In other words, the fact that complying with the law will cause you to die is no excuse. An exception is an exception.

Put this way, I would suggest 3 observations:

1. I think this narrowing makes the connection between this case and a hypothetical Jihadi John case much clearer. In the hypothetical, Jihadi John claims that the existence of a self-defense exception to murder means there must also be a religous-motivation exception, which must protect the various beheadings of infidels that are in his view obligations of his religion from legal sanction. If the state wants to forbid religous motivated killings, it must prohibit all killings, even those necessary to protect people from likely or certain death. If the law permits his victims to kill him to avoid being beheaded, it has to also permit him to kill them. This is I think remarkably similar to a claim that if the state wants to create an exception to vaccination even to those likely to experience certain death from being vaccinated, it must also create an exception for people who object for religious reasons.

2. I think the vaccination example, and this hypothetical, illustrate a clear difference between what might be called the “weak” and “strong” versions of the Alito intwrpretation. Under strong Alito, the existence of exceptions decides the matter entirely in favor of the religious objection. Smith’s holding that universal laws waive trump Free Exercise laws means instead that non-universality in law always trumps (or indeed nullifies) the states’ interests. This is a sort of contrapositive, but getting there requires assumimg a law of the excluded middle. But the middle is hardly ever excluded in real life. It is almost always there. That’s the logical fallacy.

Under Weak Alito, which allows for a middle, non-universality merely returns things to pre-Smith jurisprudence. If the state would have won pre-Smith, it also wins here.

3. Seen this way, and acknowledging Alito’s position really does seem to be Strong Alito, I think Police v. Newark reached the correct result but for the wrong reasons. At the first step, the existance of exception requires a second step, looking things from a pre-Smith analysis.

I think the City of Newark would lose a pre-Smith analysis. The Supreme Court has historically been highly differential to the military on matters of discipline and allowed for many exceptions to constitutional rights that would exist in civilian agencies. But the police, while having a somewhat paramilitary character, are part of civilian government, not the military. Their interest in having every police officer have an identical appearance simply isn’t as great, or as defered to, as the actual miltary’s. For this reason, I would say their interest here is not compelling, and hence fails a pre-Smith analysis. The Muslim officer wins.

But while the out ome is the same, the reasons for the Muslim officer winning under the two standards are very different. And the difference really matter here. This IS the motary, where the courts are traditionally deferential, and in addition vaccinations are a traditional compelling interest. And if exceptions as well as the general rule itself also have to pass compelling interest, a suitably written medical exception does that too, as the “if you take it it will kill you” extreme example illustrates.