Preliminary Injunction Bars Forced Retirement Based on Air Force Officer's Religious Refusal of Vaccination

"Although the Air Force claims to provide a religious accommodation process, it proved to be nothing more than a quixotic quest for Plaintiff because it was 'by all accounts, ... theater.'"

From Air Force Officer v. Austin, decided yesterday by Judge Tilman Self III (M.D. Ga.):

"Your religious beliefs are sincere, it's just not compatible with military service." That's about as blunt as it gets.

{This is how Plaintiff's chain of command paraphrased why he thought she was denied a religious exemption from a COVID-19 vaccine. True, he undoubtedly spoke for himself, but when considering the Air Force's abysmal record regarding religious accommodations requests, it turns out he was dead on target.}

Relying on the protections of the First Amendment, the Religious Freedom Restoration Act, and the Administrative Procedure Act, Plaintiff, a United States Air Force officer, seeks a preliminary injunction to protect her from our military's mandatory COVID-19 vaccination requirement. Although the Air Force claims to provide a religious accommodation process, it proved to be nothing more than a quixotic quest for Plaintiff because it was "by all accounts, … theater." U.S. Navy SEALs 1–26 v. Biden (N.D. Tex. Jan 3, 2022) (O'Connor, J., describing the Navy's religious accommodation process). Despite thousands of requests for religious exemption, the Air Force hadn't granted a single one of them when Plaintiff filed her Complaint. Why? Because until about two weeks ago, apparently no religious exemption from a COVID-19 vaccine was "compatible with military service."

{At the end of the hearing on Plaintiff's preliminary injunction, the Court informed the parties that it had closed the evidence relevant to that relief. Undeterred, Defendants filed the Declaration of Colonel Jason A. Holbrook six days later, informing the Court that "as of February 4, 2022, nine … religious accommodation requests … have been approved within" the Air Force. That raises the Air Force's percentage of granted religious exemptions from 0.00% to about 0.24%. So, suffice it to say, Defendants' last-minute efforts to inject something new into the record doesn't change the Court's opinion because what Col. Holbrook's declaration doesn't tell the Court is when the Air Force granted these nine religious exemptions. Though, when looking closely at the data on the Air Force's COVID-19 website, one learns that as of January 31, 2022, the Air Force had yet to approve a single religious exemption. In other words, the Air Force granted these nine exemptions in the last two weeks.}

The Air Force defends its actions by arguing that the military has a compelling interest in "maintaining the health and readiness of its forces," and that interest is compelling enough to overcome any constitutional or statutory challenge to it. "But even in a pandemic, the Constitution cannot be put away and forgotten." …

Plaintiff argues that strict scrutiny applies under the Religious Freedom Restoration Act [of 1993] because Defendants' COVID-19 vaccination requirement substantially burdens her sincere religious beliefs…. RFRA says that the "Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability."  …

First, Defendants' COVID-19 vaccination requirement must substantially burden the free exercise of Plaintiff's religion. To this point, Plaintiff argues that she "has a sincere religious belief that prohibits her from submitting to an injection of any of the presently available COVID-19 vaccines" and that Defendants' COVID-19 vaccination requirement puts "substantial pressure" on her "to modify [her] behavior and to violate [her] beliefs." A classic case of "substantial pressure" occurs when a person has to choose between her job and her religion. That is exactly the choice Plaintiff alleges the Air Force "forced" her to make—either "abandon[] one of the precepts of her religion" or abandon "her livelihood." …

Now, the question becomes whether Defendants can show that the substantial burden placed on Plaintiff's religion by its COVID-19 vaccination requirement furthers a compelling governmental interest and that vaccination is the least restrictive means to further that interest…. "[S]temming the spread of COVID-19" [is] a compelling interest …. However, just because COVID-19 continues to linger, that is not an invitation to "slacken … enforcement of constitutional liberties."

RFRA specifically contemplates "a person's exercise of religion." That is why the Supreme Court has said that RFRA "requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged [policy] 'to the person'—the particular claimant whose sincere exercise of religion is being substantially burdened." Thus, the Court "must 'look beyond broadly formulated interests,' [such as maintaining the health and readiness of military forces] and instead consider 'the asserted harm of granting specific exemptions to particular religious claimants[.]'"

Circumspect as to what the Court must actually consider—the asserted harm of granting specific exemptions to particular religious claimants—Defendants bank on the fact that because Plaintiff's leadership position demands in-person interaction with other military personnel and members of the public, they have asserted more than a broadly formulated interest. This compelling interest as to Plaintiff, though, completely ignores that there are at least 3,300 exempt Air Force service members carrying out their respective duties similarly unvaccinated. At bottom, Defendants simply don't explain why they have a compelling interest in Plaintiff being vaccinated while so many other Air Force service members are not.

When it comes to the least restrictive means to curb the spread of COVID-19 within the Air Force, Defendants contend that vaccination is the only way to ensure the health that is "paramount to military readiness." By their argument, "[n]one of Plaintiff's proposed alternatives sufficiently protect the military's compelling interest in maintaining the health and readiness of its forces."

First, Defendants argue that Plaintiff's willingness and ability to work remotely isn't really a viable option given her "military-specific responsibilities[.]"Although Plaintiff has worked remotely "[a]t various times in her career," the Air Force has now determined that her position "requires her to appear and lead in person."

For about two months now, the Air Force has permitted Plaintiff to work on the base in person, provided she practice non-vaccine preventive measures such as getting tested regularly, wearing a mask, and social distancing. Now, they argue that such preventive measures are insufficient. For example, Defendants argue that "[m]asks are limited to controlling the spread of [COVID-19]" and "provide no protection to a service member who is infected" with the virus. When it comes to Plaintiff's argument about natural immunity, they offer nothing in rebuttal other than claiming that she misreads the relevant regulations.

Plaintiff's natural immunity coupled with other preventive measures begs the question: Does a COVID-19 vaccine really provide more sufficient protection? This is especially curious given the number of people who have been and continue to be infected after becoming fully vaccinated and receiving a booster—including the Secretary of Defense, the Chairman of the Joint Chiefs of Staff, and the Commandant of the Marine Corps. Simply put, Defendants have failed to explain why having Plaintiff—a single member of a nearly fully vaccinated Air Force—submit to a COVID-19 vaccine is the least restrictive means to achieve its compelling governmental interest in maintaining a healthy force.

For purposes of the motion before it, the Court agrees with Plaintiff's argument that Defendants haven't "shown that vaccination is actually necessary by comparison to alternative measures[]" since "the curtailment of free [exercise] must be actually necessary to the solution." …

Thus, … the Court finds that it is "likely or probable" that Defendants have not shown that taking a COVID-19 vaccine is the least restrictive means available to further the compelling governmental interest of stemming COVID-19 when their chosen means places a substantial burden on the free exercise of religion….

With respect to her First Amendment claim, Plaintiff argues that strict scrutiny applies because Defendants' COVID-19 vaccination requirement treats secular, medical accommodation requests and clinical trial participation more favorably than religious accommodation requests. In other words, because Defendants' COVID-19 vaccination requirement is not neutral toward religion or generally applicable, Plaintiff contends that it must satisfy strict scrutiny. For the same reasons Plaintiff is likely to succeed on her RFRA claim, she is also likely to prevail on her First Amendment claim.

"A law[,]" or in this case a vaccination requirement, "is not generally applicable if it invites the government to consider the particular reasons for a person's conduct by providing a mechanism for individualized exemptions." Fulton v. City of Philadelphia (2021). "A law also lacks general applicability if it prohibits religious conduct while permitting secular conduct that undermines the government's asserted interests in a similar way." Sound familiar?

Defendants' COVID-19 vaccination requirement allows service members to refuse vaccination for secular reasons while disallowing refusal based on religious reasons. No matter whether one service member is unvaccinated for a medical reason and another unvaccinated for a religious reason, one thing remains the same for both of these service members—they're both unvaccinated. In other words, both of these service members pose a "similar hazard" to Defendants' compelling interest in "[s]temming the spread of COVID-19″ within the military….

Since Defendants' COVID-19 vaccination requirement is neither neutral toward religion nor generally applicable, it is unlikely to pass strict scrutiny—"the most demanding test known to constitutional law." …