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." …

Comments

[AmosArch]

with omicron, which is already even less deadly on the way out whats the point anymore except theater? If you're so afraid you can get your 4th booster.

[Armchair Lawyer]

It's about politics now. Using the vaccine as a way to eliminate those who do not have compatible political beliefs.

[Rev. Arthur L. Kirkland]

Mostly, conservatives seem to be want to be known these days for (1) virus-flouting, antisocial belligerence and (2) protecting bigotry and bigots.

As an American electorate that is daily becoming less rural, less religious, less White, less intolerant, and less backward observes these points, the trajectory of American progress becomes more predictable.

Carry on, clingers.

[Joe_dallas]

Rev - like to see how you survive with out rural america providing the food you need to eat.

For all the crap you say about them, you are highly dependent on those same people for you meager existence.

[Joe_dallas]

Likewise, the vaccine is only 30% or less effective against omicron and then only for 2-3 months

But lets demand every get the equivelant of a flu shot for lasts years flu strain

[Noscitur a sociis]

And if you want to be able to disobey orders because you think you know better, you can exercise this opportunity to get out of the military.

[Flight-ER-Doc]

Sounds like the Officer is expecting the US Air Force to actually follow their regulations.

[Dilan Esper]

Even if the Air Force isn't following its regulations, since when is that a court case? Federal judges aren't supposed to be interfering in the operations of the military except perhaps in extraordinary cases.

[XD]

Extraordinary cases like where explicitly required by the RFRA, one might say.

[Dilan Esper]

It isn't explicitly required by RFRA. Nothing in RFRA says it is exercising Congress' power to make rules for the armed forces, and RFRA does claim to be restoring a legal standard where the military had enormous discretion to disregard religious liberties in favor of national security imperatives.

It would be perverse to hold RFRA's real intent is to cause troops to die of COVID so that soldiers could have a freedom they never had before.

[AmosArch]

Thats a pretty lame reasoning to shut down any criticism of military policy.

Don't like the my lai massacre? Exercise you option to leave.

[TheAmazingEmu]

To use that as an example, what legal options would US courts have had related to the My Lai Massacre?

[Bored Lawyer]

"The Congress shall have Power To . . .To make Rules for the Government and Regulation of the land and naval Forces;"

Sounds like it is the military that is disobeying the orders given to it by Congress. That "obey orders" thing works both ways, unless you want a military dictatorship.

[Flight-ER-Doc]

And the CDC, is not Congress.

[Josh R]

What orders from Congress is the military disobeying?

[Bored Lawyer]

RFRA. Read the judge's opinion.

[Noscitur a sociis]

The purpose of RFRA was to restore the pre-Smith test for religious accommodations. Under that test, the military could refuse to accommodate the unquestionably sincere belief that it is important to wear a small hat while in uniform. I don't see how RFRA is an "order" requiring them to accommodate the patently insincere belief that it is important not get a COVID vaccine.

[Life of Brian]

the patently insincere belief

Oh dear. I suspect the rest of your comment would have held together just fine without saying the quiet part out loud.

[Dilan Esper]

No major organized religion is teaching that vaccines are against its tenets. Meanwhile, lots of political conservatives with ideological/partisan objections to the vaccines and who have shown no objection to vaccination in the past have suddenly found religion to try and escape mandates. I'd say that's insincere.

[XD]

Thankfully, the First Amendment does not apply solely to major organized religions.

[Dilan Esper]

The reaction of organized religion is part of the enormous evidence that the claimants of these exemptions are liars.

[Stephen Lathrop]

I don't think it is fair to conservatives to say they have objections to vaccines. Apparently they are all vaccinated at Fox News. It's more like they discovered they can raise money by pretending to have objections to vaccines.

[Da5id]

There is a difference between objecting to the vaccines and objecting to people being told they will lose their career if they don't get vaccinated. One can think the vaccines are great and still not believe in coercing others.

[Josh R]

In Hobby Lobby SCOTUS implied RFRA goes beyond pre-Smith doctrine in protecting religious liberty.

[Dilan Esper]

Even if it does, there's no evidence that Congress was exercising its power to make rules for the armed forces when it passed it.

[XD]

Except for its obvious generality of scope in referring to the Federal Government in toto, of which the military is a part. Cope harder.

[Dilan Esper]

That's not how Congress makes rules for the military- by passing statutes that were intended to address other matters, restored a standard that was deferentially applied to the military already, and which never mention the military.

[Josh R]

Certainly the contours of how much RFRA expanded pre-Smith doctrine is not known.

[Armchair Lawyer]

"the patently insincere belief"

Literally from the decision "Your religious beliefs are sincere"

[Noscitur a sociis]

If your point is that the military should be disciplining these shameless liars before cashiering them instead of pretending to respect them, I completely agree.

[Kazinski]

Well where is the due process for showing they are shameless liars?

Is it your position that all facets of military justice require only sham justice, and the chain of command should be given free rein to do what they want?

[Dilan Esper]

It's the military. There is no process required. If the CO orders you to take a shot, you say "yes sir" and serve your country.

[XD]

Dilan, where in the Constitution does it say that the military is an extraconstitutional preserve set aside from judicial review?

[Michael P]

Dilan, one of the fundamental rules of courts martial and insubordination is that "just following orders" does not excuse violation of the law. Service members cannot be cashiered for refusing to follow an illegal or unconstitutional order.

[Dilan Esper]

My position is precisely that servicemembers generally have no right to sue their military commanders in federal courts because they don't wish to follow orders. There may be limited exceptions to this, but this is backed up by 225 years of caselaw, which, under our system, is controlling no matter what you guys say about constitutional text.

But if you want constitutional text, this is part of the separation of powers.

[Social Justice is neither]

Dolan and the rest of the leftists here actually supporting the unthinking commission of war crimes and crimes against humanity because someone in power said so. Would be sad if it wasn't so commonplace for them.

[Armchair Lawyer]

My point is, they have a sincere belief, as the court point out.

Your "insincere belief" crap is just blatant bigotry.

[Bored Lawyer]

You are missing the point Noscitur. You criticized this member of the military for refusing to obey orders. But that person and her counsel, and now a district judge, believe that such orders violate both RFRA and the First Amendment. There is no "disobeying" or orders to sue the military to require it to abide by Congress's directives.
Whether RFRA means she gets a pass is debatable. But it is hardly insubordinate for her to claim so.

[Dilan Esper]

The federal courts have no business intervening in this sort of military decision, and any servicemember who disobeys this sort of military command, designed to protect his fellow servicemembers from infectious disease that could compromise national security, in this way is unfit for service.

[Bored Lawyer]

See my quote from the Constitution above. The military is subordinate to Congress, who can dictate its rules. Including whether it is subject to judicial review.

[Dilan Esper]

Congress has not dictated any rule. Come back to me when Congress passes, and the President signs, a law overturning the power to order vaccines.

[DaivdBehar]

Lawyers on the bench side with big government tyranny again.

[M L]

It is a political purge. Quite a few marines and other military I know see it that way.

[santamonica811]

"...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…."

This seems like dopey reasoning to me. The court is unable (or, apparently, unwilling) to distinguish between "I simply CAN NOT." and "I am unwilling to, due to my religion." This seems so commonsense to me (in the context of the military) that I am surprised that the court made this finding. It's like if 2 guys are in the Navy, both are skilled welders, and the Navy says, "We have an urgent need for underwater welder divers. You're both being assigned to this training programme." Person One says, "I interpret my religion to forbid me from being complete underwater at any time. So, I don't want to be assigned to this." Person Two says, "I have a documented inner-ear condition, that you already have documented. I physically cannot be underwater more than 5 feet deep. I am, therefore, totally physically unsuitable to be a diver welder. So, I don't want to be assigned to this."

Person Two would obviously not be assigned to this. This court seems to be saying, "Well, if physical disability reasons are acceptable excuses, then you have to also accept religion-based excuses." I find this unconvincing. Especially in the case of an all-volunteer military. In our next war, when our boys are girls are being again sent overseas to fight and die for our country, I'd expect a bunch of enlisted to start attending services for Quaker, Jain, 7th Day (etc etc), and say, "I now have a sincere religious objection to carrying a weapon. Please send me somewhere where I don't have to have one in my possession. A nice cushy post in Hawaii, London, Washington DC, etc. will be perfectly fine."

[AmosArch]

Its common practice to accommodate (some) sincerely held beliefs in Western Countries like you would a physical condition. Otherwise you wouldn't be able to have felons magically transforming into women at taxpayer expense and vice versa.

[Flight-ER-Doc]

Particularly hazardous military duty (parachuting, submarine duty, flying, and yes, even military diving) is a volunteer program, and you can volunteer to quit that part of it. Likewise a person who has to participate in some sort of enhanced reliability program (nukes)...if you can no longer mentally or morally do the job, you can quit. Which makes sense, we wouldn't want a person with issues handling extra critical tasks.

So, your example is flawed: The Navy, in that situation would bring in a third, competent, and compliant person.

[Kristian H.]

Are the discharged getting Honorable discharges?

When enlisted in say 2019, there wasn't this mandate. So the terms of enlistment have changed. Should that make a difference?

And what of the general the limits to quitting, mid-enlistment?

What if there is a draft? Can you force draftees to do something when they can't quit? Should that be different than this?

[Dilan Esper]

It may be common practice, but the military is not required to do it.

[XD]

Yes, by the RFRA, they are.

[Dilan Esper]

Nope. RFRA is not an exercise of the power to make rules for the military.

[Bored Lawyer]

I was going to comment on this point. I disagree. One, IIRC, this same analysis was used by the Supreme Court, so the judge here was compelled to use it.

And second, your welding analogy is inapt. The issue here is not a skill to be employed in the service of the military, it is that the Air Force is claiming that being unvaccinated is a hazard to other members of the Air Force. That's equally true regardless of why the person is unvaccinated, whether for a medical or religious excuse. If the Air Force is willing to tolerate the "hazard" of an unvaccinated service member because she claims a medical excuse, it has to tolerate the same "hazard" if she claims a religious excuse.

Put differently, if the Air Force really believed that this was a serious hazard, it would discharge members with both types of excuses. Or, if it can accomodate the one, it can accomodate the other. As the opinion indicates, they apparently have been accomodating the plaintiff for a while. ("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.")

That's really the nub of the First Amendment in this context: the Govt. does not get to value religious values less than secular ones. If something is truly a danger, then no excuses. Once you accept some excuses, you have to accept religious ones on an equal footing.

[Rossami]

I was going to reply but you said it better. Thank you.

[Josh R]

When did SCOTUS use this analysis?

Eugene thinks a medical exemption does not imply the First Amendment requires a religious exemption.

[Bored Lawyer]

The opinion quotes Fulton v. City of Philadelphia (2021) to the effect that "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."

That seems to cover this situation, although the case there did not involve a medical exemption per se.

[Josh R]

Eugene and Laycock argue, persuasively in my opinion, the medical exemption does not undermine the government's asserted interests.

[Armchair Lawyer]

And yet....it does.

If someone with a medical exemption can do the job...then someone with a religious exemption can do the job.

[MollyGodiva]

That legal standard is complete bull and makes zero sense outside of the "I just want to let religious people do what they want" crowd.

[Bored Lawyer]

Thank you for your analysis. You could have saved some pixels and not bothered posting.

[Kazinski]

Take your quarrel up with congress then, because that's what their law says. The judge is just applying it.

[Dilan Esper]

The law does not say that. Nothing in RFRA grants federal courts the power to override military commands.

[XD]

That is implied by the very nature of judicial review and the fact that the RFRA applies to the federal government as a whole, which includes the military.

[Dilan Esper]

The very nature of judicial review is there's no general judicial review of military orders to subordinates. Article III judges are separated and not part of the chain of command.

[Josh R]

Even Douglas Laycock, the godfather of religious exemptions, disagrees with this court's reasoning.

[Bored Lawyer]

I don't know what he would say in this particular case. But he would be wrong in this case if he did. The military can always discharge someone who does not take the vaccine. And then it would not be responsible for her medical care. That it is willing to accomodate such people means it has to provide the same accomodation to religious objectors.

[Bored Lawyer]

THe key sentence in Laycock's piece is this:

"But these medical exceptions don’t undermine the government’s interest in saving lives, preventing serious illness or preserving hospital capacity. By avoiding medical complications, those exceptions actually serve the government’s interests."

Again, the military has a third option: discharge the person to civilian life.

[Josh R]

Or perhaps the military concludes giving the medical exemption, rather than a discharge, best balances the government's interests in defending the nation and saving lives. In contrast, a religious exemption does not have the same calculus.

[Bored Lawyer]

Why? If there is a need for manpower, then the miltiary has just as much need for the person with a religious exemption as the person with a medical exemption. That, IMO, is the weakness in the First Circuit decision Prof. Volokh commented on.

[Armchair Lawyer]

Indeed...

If someone had a religious belief in not being able to kill a person...or someone had a medical condition that didn't allow them to shoot a firearm...the army would exempt them both.

[Dilan Esper]

It would, but it isn't required to and historically military commanders have indeed required people who didn't want to go into combat to go into combat, with the federal courts having no power to stop it.

[Armchair Lawyer]

Really? I was pretty sure that the whole "religious objector" status prevented people from being forced into combat.

[Dilan Esper]

The political branches have the power to recognize conscientious objectors. It's not constitutionally required though, and if you are in the army and disobey an order to go into combat, you can be prosecuted for cowardice in a military court martial.

[Armchair Lawyer]

Clay v United States would seem to indicate otherwise.

https://www.mtsu.edu/first-amendment/article/231/clay-v-united-states

[Josh R]

I'm pretty sure only Justice Douglass reached the conclusion conscientious objections are constitutionally required.

[Josh R]

You didn't address my argument about the government's asserted interest in balancing the need for manpower and saving lives, and how that balance is not the same with a medical exemption as it is with a religious exemption.

[Bored Lawyer]

Because you have not explained that difference at all. Nor can I think of any way to do that without importing anti-religious bias.

But feel free to enlighten me.

[Josh R]

Providing a medical exemption increases manpower, but at a possible cost of lives lost. Providing a religious exemption increases manpower the same amount, but at a possibly greater cost of lives lost. Hence, the decision that balances manpower and lives lost may not reach the same decision in the two cases.

[Toranth]

How is a medical exemption person that becomes infected less dangerous than a religious exemption person that becomes infected?

Viruses don't pay any attention to the exemption paperwork, as I'm sure you know.

[Dilan Esper]

Toranth:

One reason is the medical exemption is verifiable, whereas people lie about their religious beliefs.

[Armchair Lawyer]

Because people would never lie about their medical condition, or exaggerate it to get out of being drafted. No sir.

[Toranth]

Dilan:
How does being verifiable change a person's risk for catching or spreading a disease?

[Dilan Esper]

Verifiable changes the calculus because liars should be forced to get their vaccinations.

[Josh R]

How is a medical exemption person that becomes infected less dangerous than a religious exemption person that becomes infected?

They aren't. But, more lives are saved by allowing a medical exemption than a religious exemption because the person exempted is much less likely to die from the vaccine.

[Toranth]

Dilan, that has nothing to do risk, though.

An unvaccinated liar and an unvaccinated true believer have a risk profile no different than an unvaccinated medical exemption - or the risk profile of a medical exemption granted for falsified/exaggerated claims, as AL points out.

[Commenter_XY]

Wow, Bored Lawyer. You neatly summarized everything right at the end. It was perfect (meaning, a layman like me can totally get it). Thank you.

[JasonT20]

If the Air Force is willing to tolerate the "hazard" of an unvaccinated service member because she claims a medical excuse, it has to tolerate the same "hazard" if she claims a religious excuse.

I'll say up front that this argument bothers me for reasons that don't have to do with the law or Constitution. For me, to argue that a person's religious beliefs should be accommodated to the same degree as a medical claim is foolish. The latter is based on verifiable facts and conditions that the person making the claim is not choosing. The former is entirely a free choice and based on supernatural thinking. There is no rational basis to accommodate those claims equally. It is only an artifact of the preferences American law gives to religion. (Especially the correct religion.)

I get the purpose and do support both religion clauses of the 1st Amendment. But using the figures quoted here, 3300 medical exemptions amounts to around 1% of the Air Force personnel. Having 1% unvaccinated is not likely to affect the readiness and functioning of the whole service. But the argument here would give an unlimited number of service members religious exemptions that could leave a large portion of the service unvaccinated. And that would make the whole service more vulnerable to outbreaks and thus disruption of essential duties.

Like with any infectious disease with an available vaccine, the more people that are vaccinated, the better it is for everyone. And that includes the people that can't be vaccinated for medical reasons. That's the flaw of insisting on an individualized analysis of the legal case to the person making the religious claim.

[Flight-ER-Doc]

Especially when the vaccinated still get ill with Covid-19, in numbers equal to or greater than the unvaccinated (depending on the dataset you look at).

[JasonT20]

I haven't seen any data sets that show vaccinated people getting COVID-19 in numbers equal to or greater than the unvaccinated. Everything I see from credible medical professionals references data that shows clear benefits to being vaccinated versus unvaccinated with no prior infection either. Basically, it is clear that you want immunity. And it is better to get immunity from a vaccine than by getting sick and taking the risk of severe symptoms, long COVID, or death.

Dr. Keith Moran has a lot of videos discussing different sources of data. He's very thorough, and with a speaking voice that monotone, it is hard to think that he'd be biased by emotion.

[Michael P]

Generally the "equal or greater numbers" data sets are ones where the vaccinated are much more numerous (and so the "numbers" are total rather than per capita), or notably more susceptible to infection, than the unvaccinated. It's never a comparison of populations that are alike other than vaccination status.

[AmosArch]

>>>>>>>>>>>>>>>>>>>>>>>>
The latter is based on verifiable facts and conditions that the person making the claim is not choosing. The former is entirely a free choice and based on supernatural thinking.
>>>>>>>>>>>>>>>>>>>>>>>>

What is reality? You might think its silly nonsense but to a devout Catholic a piece of bread becoming Christ is as real as the air he breathes. OTOH to someone like you the existence of 75 genders and the need to brutally punish deadnamers is self evident and absolute indisputable reality while the Catholic would think you are delusional. The Catholic would heavily dispute that he can just 'choose' to believe the transubstantiation as much as you would protest the ridiculous notion that you could choose to believe or not believe in the 89 genders.

Thats why as much as possible we try not to pick and choose which reality we sanction. Of course there is a limit but a rapidly disappearing Omicron covid is hardly the black death (especially when combined with accommodations that minimize contact with the person in question) and we as a society allow the continued existence of much deadlier things like abortion and BLM and social justice nonsense.

[JasonT20]

OTOH to someone like you the existence of 75 genders and the need to brutally punish deadnamers is self evident and absolute indisputable reality...

You've made a lot of assumptions about what I believe here, in addition to framing it in as ridiculous a manner as you can. Belief in transubstantiation is not based on verifiable evidence. It is purely a matter of faith. The air we breathe can be measured and studied scientifically. If a Catholic really does believe that the communion wafer literally becomes the body of Christ and the wine His blood, and that this is as real as the air he breathes. That is his choice. And yes, faith is a choice. Unless you are arguing that being raised as a Catholic takes away a person's free will to think for themselves. Does being indoctrinated into a religion remove the ability of a person to critically examine the doctrines of that belief system? I hardly think so.

Biological sex can studied in terms of genetics, anatomy, and biochemistry. (And there are 'intersex' people that aren't simply XY = male, XX = female. That's not the same thing as transgenderism or "non-binary", but it is incorrect to claim that having two sexes in humans is absolute.) Gender is less tangible, because it includes the psychological experiences of people, and not just pure biology. I am a cis-gendered, heterosexual male. That is why I just can't understand what it is like to be a gay man, a trans woman, bisexual, asexual, or anything else under the LGBTQ+ umbrella.

But I also can't understand what it is like to be a heterosexual woman that is attracted to men, either. That is why my perspective on these questions is that I don't know if being transgender or homosexual are "real" and "normal" (if uncommon) parts of human sexuality and gender. But I am not going to tell someone that says that they are one of these things that they are scientifically wrong, since there does not seem to be any scientific basis to completely reject these experiences. Nor would I say that they are "sinful" or "going against God". Not just because I don't believe in any gods, but because I would not claim to speak for such a being if I did think one existed.

A better topic for the comparison that you want to make is whether to "believe" in a scientific theory, such as evolution. Scientists and science educators, like myself, frequently will state that it is incorrect to say that one "believes in" a scientific theory or fact, since this kind of knowledge is not subject to questions of faith. One can argue whether the evidence supporting a scientific theory or fact is sufficient to justify provisionally accepting it as true and reliable, but doing so would not be "believing in" that theory in the same sense that someone believes in religion. The nature of religious faith is to believe without regard to evidence. Science relies entirely on evidence and logical and mathematical reasoning from that evidence to determine what knowledge should be accepted as reliable, with the proviso that new evidence against it would require altering what is considered correct.

Thats why as much as possible we try not to pick and choose which reality we sanction. Of course there is a limit but a rapidly disappearing Omicron covid is hardly the black death (especially when combined with accommodations that minimize contact with the person in question) and we as a society allow the continued existence of much deadlier things like abortion and BLM and social justice nonsense.

We pick and choose which reality we sanction all of the time. We rely on facts and evidence for most of what we do in our daily lives. We just don't think about it that way very often. You relied on the expertise and knowledge and established facts of science and engineering when you drove to work. The vehicle, the roads, the chemistry of the fuel, the safety of how gas is pumped at the station into your vehicle, the traffic laws that determine what is and isn't safe driving... All of that is based on verifiable facts. They are not subject to each person's version of reality.

The same is true for questions of public health. The risks and interventions to mitigate and reduce those risks of an infectious disease are subject to observational and experimental science and evidence-based reasoning. Experts can disagree, and people can be skeptical of the experts. That is fine, but it isn't a debate over what reality to accept. The only reality that should govern our responses to public health issues are the facts, reasoned analysis of those facts, and at that point, we can enter our subjective values into deciding what trade-offs to make.

[AmosArch]

Belief in transubstantiation is not based on verifiable evidence. It is purely a matter of faith. The air we breathe can be measured and studied scientifically. If a Catholic really does believe that the communion wafer literally becomes the body of Christ and the wine His blood, and that this is as real as the air he breathes. That is his choice. And yes, faith is a choice. Unless you are arguing that being raised as a Catholic takes away a person's free will to think for themselves. Does being indoctrinated into a religion remove the ability of a person to critically examine the doctrines of that belief system? I hardly think so.
>>>>>>>>>>>>>>>>>>>>>

Nothing is absolutely verifiable except maybe your own consciousness.

>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>
Biological sex can studied in terms of genetics, anatomy, and biochemistry. (And there are 'intersex' people that aren't simply XY = male, XX = female. That's not the same thing as transgenderism or "non-binary",
>>>>>>>>>>>>>>>>>>>>>>

Thats right. So why is it treated as a fact that people must believe in transgenderism in the same way on pain of punishment or ostracism? You're so concerned about rationality and science when it comes to religions/cults you don't like and suddenly you're jello and 10 paragraphs of waffling verbiage when it comes to this.

>>>>>>>>>>>>>>>>>>>>>>>>>>>>
Gender is less tangible, because it includes the psychological experiences of people, and not just pure biology. I am a cis-gendered, heterosexual male.
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>

In other words in this particular instance its a concept that should be treated the same as those other 'nonscientific' beliefs you scorn. Kinda weird how you sneer at traditional religion as a cafeteria item yet this is offlimits to question.

>>>>>>>>>>>>>>>>>>>>>>>>>>>>>
But I also can't understand what it is like to be a heterosexual woman that is attracted to men, either. That is why my perspective on these questions is that I don't know if being transgender or homosexual are "real" and "normal" (if uncommon) parts of human sexuality and gender. But I am not going to tell someone that says that they are one of these things that they are scientifically wrong, since there does not seem to be any scientific basis to completely reject these experiences. Nor would I say that they are "sinful" or "going against God". Not just because I don't believe in any gods, but because I would not claim to speak for such a being if I did think one existed.
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>

You respect the nonscientific beliefs of LGBTJIKOLFDJOILDFJKOKJLFKLDKLFLDIFLK activists to the point that you allow them to mutilate children and take taxpayer money to transition after killing people and brutally destroy the lives of people who don't share their philosophy. I just don't think its that big a deal to extend this respect a little bit to the 'silly' belief of another who wishes to maintain their bodily autonomy and pass up the jab (for a disease that may very well disappear by the time the court case winds its way through) AS they maintain isolation from others.

>>>>>>>>>>>>>>>>>>>>>>
We pick and choose which reality we sanction all of the time. We rely on facts and evidence for most of what we do in our daily lives. We just don't think about it that way very often. You relied on the expertise and knowledge and established facts of science and engineering when you drove to work. The vehicle, the roads, the chemistry of the fuel, the safety of how gas is pumped at the station into your vehicle, the traffic laws that determine what is and isn't safe driving... All of that is based on verifiable facts. They are not subject to each person's version of reality.
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>

I'm comparing the nonscientific beliefs you arbitrarily respect to the ones you don't.

>>>>>>>>>>>>>>>>>>>>>>>>>>>>>
The same is true for questions of public health. The risks and interventions to migate and reduce those risks of an infectious disease are subject to observational and experimental science and evidence-based reasoning. Experts can disagree, and people can be skeptical of the experts. That is fine, but it isn't a debate over what reality to accept. The only reality that should govern our responses to public health issues are the facts, reasoned analysis of those facts, and at that point, we can enter our subjective values into deciding what trade-offs to make.
>>>>>>>>>>>>>>>>>>>>>>>>>

According to some theories Omicron arose (and by extension the pandemic was prolonged) due to HIV immunosuppressed people in South Africa. Not flag waving trumpists in North America like everybody keeps screaming. Tell me Mr Scientist. What supercomputer did you bang on that spit out the scientific proof that forcibly vaxxing a handful of hicks is going to significantly affect the trajectory of COVID? Or are you just going by your gut feeling based upon what you heard on CNN?

[Krayt]

Sime religions teach you to treat people of other religions as hellbound evil. Avoid them, shake the dust off your shoes. Don't deal with them in any way.

Modern politics is religion.

Now you are actually woke.

[JasonT20]

Nothing is absolutely verifiable except maybe your own consciousness.

We don't need "absolutely verifiable" information. We just need something that is reliable. Scientific reasoning is mostly inductive reasoning. You accumulate evidence in favor of a proposition until it is reliable enough that you provisionally accept it and move to study the next thing unless you happen to come across something that casts doubt on previously accepted ideas. Basically, is it reliable enough to be useful?

Thats right. So why is it treated as a fact that people must believe in transgenderism in the same way on pain of punishment or ostracism? You're so concerned about rationality and science when it comes to religions/cults you don't like and suddenly you're jello and 10 paragraphs of waffling verbiage when it comes to this.

You could have made significant headway here, except that you again make assumptions and extrapolations about what I think and believe. You are tying to me everything that you don't like about the LGBTQ+ activists that you think are mutilating children and destroying the lives of anyone that doesn't think like they do.

I'm comparing the nonscientific beliefs you arbitrarily respect to the ones you don't.

This is what I mean. You have a point there, that I am giving some benefit of the doubt to LGBTQ+ individuals while not thinking much of many religious beliefs. But the claims about transgenderism, homosexuality, and so on, might not be firmly grounded in science yet. But they are subject to scientific study. We may eventually learn why some people are gay, why some feel that their gender doesn't match their biological sex, and so on. The claims of the religious, on the other hand, are inherently untestable. Or, when religions do make testable claims, they can be shown to be false, and yet adherents of those religions may not accept that their holy book was proven wrong. (Young Earth Creationists, for example)

Tell me Mr Scientist. What supercomputer did you bang on that spit out the scientific proof that forcibly vaxxing a handful of hicks is going to significantly affect the trajectory of COVID? Or are you just going by your gut feeling based upon what you heard on CNN?

I'm just going by everything I know about the history of vaccines. Small pox was eradicated because we got a high enough percentage of every human population vaccinated that it just had no way to keep spreading. Polio is endemic to just a few countries now, for the same reason. Measles is almost completely unknown in the U.S. because well over 90% of children were getting vaccinated for decades. Now, the flu vaccine isn't effective enough to wipe out influenza, so not all vaccines work that well. But I have every reason to expect that the more people are vaccinated for COVID (or had previously recovered from an infection), the less it will spread. 1% of the Air Force being exempt for medical reasons won't make a significant difference, but if, say, 25% were allowed to refuse on religious grounds, then outbreaks that impact the ability of the Air Force to function well would definitely be more likely.

[santamonica811]

Bored,
I think that's a good point. You've changed my mind about this. (I now feel that both should be kicked out/discharged.)

[Dilan Esper]

If the Air Force is willing to tolerate the "hazard" of an unvaccinated service member because she claims a medical excuse, it has to tolerate the same "hazard" if she claims a religious excuse.

That's ridiculous. You are saying that if the military accepts killing 5 servicemembers from the coronavirus, it must accept killing 10. And further that if there's a verifiable reason for someone not getting vaccinated, they must also accept liars who hide behind religion to avoid vaccination.

And that a federal court should intervene in the defense of this country to ensure that 10 people rather than 5 die. That's crazy.

[XD]

Prove that anyone is lying about this. You can't. Cry more.

[Noscitur a sociis]

If you believe that the plaintiff in this case is telling the truth, I have a very exciting opportunity for you in trans-riverine real estate in lower New York.

[Stephen Lathrop]

So XD, your claim is, "Our lies are bulletproof, so screw the law?"

I will grant you that this pro-Trump/anti-vax stuff is peculiar. It is hard to prove any one of them is lying, but it is almost child's play to prove they are almost all lying.

[Bored Lawyer]

"That's ridiculous. You are saying that if the military accepts killing 5 servicemembers from the coronavirus, it must accept killing 10."

Yes. If I understand you correctly, medical exemptions will cause 5 servicemember deaths, and religious exemptions will cause another 5. What allows the military to determine the former are acceptable but the latter are not? Sympathy for the former but not the latter? That is what is barred by the First Amendment.

I would add, if it were up to me, neither are acceptable. This is a volunteer army in peace time. If your medical state does not allow you to serve without endangering other servicemembers, then you should not serve. Ditto religious scruples. If you were in the military already, and then the pandemic hit and changed the circumstances, you get an honorable discharge. It's really not that hard.

[Dilan Esper]

Yes. If I understand you correctly, medical exemptions will cause 5 servicemember deaths, and religious exemptions will cause another 5. What allows the military to determine the former are acceptable but the latter are not?

That they are the military, exercising a core executive power under Article II of the constitution and which the judicial branch has no power to interfere with?

[Rossami]

That's not even close to true. If the separation of powers doctrine gave the Executive complete and unreviewable authority over the military, not even Congress could interfere. Yet the UCMJ is explicitly written by Congress. And it includes obligations that the military obey generally-applicable laws.

[Josh R]

Of course the military could equally disallow all those who want an exemption as you suggest. But in order to balance their manpower needs with the need to save lives, the military ought to have the option - without offending the First Amendment - of accepting an unvaccinated person who needs a medical exemption, but not any other unvaccinated person, because they need people and they don't want that person to die from the vaccine.

[Bored Lawyer]

"n our next war, when our boys are girls are being again sent overseas to fight and die for our country, I'd expect a bunch of enlisted to start attending services for Quaker, Jain, 7th Day (etc etc), and say, "I now have a sincere religious objection to carrying a weapon. Please send me somewhere where I don't have to have one in my possession. A nice cushy post in Hawaii, London, Washington DC, etc. will be perfectly fine.""

And what secular excuse is accepted to get out of fighting and land a cushy posting*? Unless you can point to one, then this
comment is inapposite.

_________
* I'd take Hawaii over the other two. Much better weather.

[Flight-ER-Doc]

In reality, the 'boys and girls' would be subjected to almost unimaginable hazing. They would have their security clearances revoked, which would mean they could no longer perform most of the tasks required of their military specialty, and they would spend their days pending resolution (discharge, or courts-martial) involved in base/post/camp beautification efforts - cutting grass with an idiot stick, picking up trash, cleaning the gym, etc.

[Rossami]

On this point, I can add something. Religious objections to service in combat are routine - including post-enlistment conversions. And they have been routinely investigated and (usually) fairly adjudicated for many, many years.

I served as the investigating officer for a claim of religious conversion of a National Guardsman during the First Gulf War. Evidence of a sincere conversion can include:
- a willingness to change MOS (military job) such as from artilleryman (who shoots at people) to medic or stretcher bearer (statistically more dangerous but not required to shoot people)
- other actions or decisions which are adverse to self-interest but consistent with the claim of religious conversion
- documentation of the conversion prior to the announcement of deployment
- independent confirmation that the claimant has been consistent in his/her statements of beliefs

Yes, there is a strong incentive to lie about religious conversions right before combat. The military knows how to deal with those. The rate of conversions validated as sincere is small but much higher than 0.00% (or even this latest 0.24%). Those religious conversion investigations were not challenged as a sham because they were not in fact a sham. The investigations above, on the other hand, do have the earmarks of a sham.

[Armchair Lawyer]

The military should follow the laws and orders from Congress. For example, regarding gays. Or regarding religious freedom.

Seems you want the military to be "selective" in which laws it follows.

[Dilan Esper]

Congress has not passed a law ordering the military to follow RFRA. RFRA was a general law and there's no evidence that it was ever intended as an exercise of Congress' power to regulate the armed forces.

[Armchair Lawyer]

So, the military shouldn't follow the general laws passed by Congress now?

[Dilan Esper]

Not with respect to issues of command of troops.

[Armchair Lawyer]

Really? So, the military can kick gays out, no problem?

[Bored Lawyer]

Curious that no lawyer representing the military has ever argued that RFRA is inapplicable to the military. Congress certainly can exempt the military, but until then, the military is an arm of the federal government, and is subject to federal law same as any other part.

[Dilan Esper]

Congress never intended to cover military orders to subordinates and RFRA at most just restores the old test which said that the military could broadly disregard religious objections anyway.

[Rossami]

And your evidence for that claim about Congress' intent is where, precisely? It's certainly not in the wording of the RFRA itself. Nor did the lawyers defending the Air Force (or the Navy in the prior suit) ever present any such evidence. What do you know that all those legal eagles missed?

[Rev. Arthur L. Kirkland]

Trump-nominated judge from the Deep South who regurgitates the claims of virus-flouting movement conservative hayseeds.

The harder these clingers push their 'limitless special privilege for superstition-rooted claims (no matter how nonsensical)' approach, the more severe will be the backlash imposed by better, educated, modern, reasoning, mainstream Americans.

So do your damnedest, clingers . . . and try to limit your whimpering when the reckoning occurs.

[Bored Lawyer]

Ah yes, I was waiting for the Pavlovian, substance-less reaction from you.

[Hugo S. Cunningham]

The judge also is not a veteran.
When you are on the line, you can perform better if you believe the guy on your right, the one on your left, and the one behind you are all following instructions from the same chain of command. That assurance falls apart if the guy on your right takes his belief system from whatever foreign intelligence agency is controlling his Internet feeds this week. The damage is no less if he drapes his Internet delusions in bogus "religious" trappings.
This argument is especially applicable to officers.

[Noscitur a sociis]

The judge also is not a veteran.

According to his Wikipedia article, Judge Self went to the Citadel and was an artillery officer for four years.

[Hugo S. Cunningham]

Thank you for the correction. I had looked it up a week or two ago, but obviously forgot what I had read.
But, without that egregious first sentence, the rest of the argument stands by itself.

[ReaderY]

This is stark raving mad crazy. It totally ignores the yarmulke case. The military doesn’t have to narrowly tailor. It has a compelling interest if the matter has aome connection, even a fairly tenuous one, to discipline or fitness for combat.

That’s clearly met here.

The military can forbid wearing a yarmulke without any need whatsoever to show that a yarmulke is in any way essential to a particular officer’s particular duties. The idea that a vaccine gets more religious protection than a yarmulke is nothing more than federal judges imposing there private opinions under the guise of the Religion Clauses.

It’s stark raving mad crazy. It’s totally idiosyncratic. It’s like saying the government can make you wear a seat belt, but can’t impose a speed limit or a duty to travel on a particular side of the road, or saying that football is interstate commerce but baseball isn’t.

[Bored Lawyer]

Try reading the opinion again. First of all, RFRA was passed since that decision. Second, the military did not allow wearing yarmulkas for secular reasons but not religious ones. If it did, it would have had a much tougher time defending its policy.

[Noscitur a sociis]

First of all, RFRA was passed since that decision.

As I understand it, RFRA was designed to restore the First Amendment law that was in place when Goldman v. Weinberger was decided, so I don't think that RFRA could be deemed to have implicitly overruled it.

[Noscitur a sociis]

Judge Tilman Self III

For obvious reasons, he appears to go by Tripp.

[Bored Lawyer]

There used to be a judge on the NY federal bench named Judge Lawless. I occassionally see the name in old opinions. That always struck me as an awkward name for a judge.

[ReaderY]

If Fulton overrides pre-Smith compelling interest, then officers have to sit in the middle of combat and die adjudicating religious exemptions, the constitution forbids their paying attention to enemies charging at them until they’ve heard all the circumstances and thoroughly adjudicated the individual case.

[Dilan Esper]

Right. How far does this extend? Does a soldier have the right to obtain an order from a federal court overturning an order on a battlefield in a combat situation because it doesn't meet a RFRA analysis?

[XD]

Cope and seethe.

[Rossami]

Your strawman ignores the fact that military officers have been coping successfully with conscientious objector claims of religious conversions for many, many years. The real military is nothing like your Hollywood-induced fantasies.

[ReaderY]

But the court just struck down the military’s long-standing traditional approach to dealing with conscientious objectors. The traditional approach is you discharge them. That’s exactly the approach the military took with Austin, except it took the kinder and gentler route of early retirement rather than an out-and-out discharge.

That practice, the traditional approach to addressing conscientious objectors, is exactly the approach the court here held is illegal. The court said the military has to make an effort to accommodate each officer individually without altering their duties in any way except for the specific things they object to, and it has to do so based on a thorough review of the facts of each individial case.

Far from being a “straw man argument,” it’s exactly what the court said. And the fact that the court struck down as illegal the very practice you presented as exemplary behavior for what the military should do suggests that the consequences of this decision are indeed far more drastic than you are realizing.

[Alpheus W Drinkwater]

"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..."

Exactly what religious belief is this? Can plaintiff simply make this generic declaration with no further explanation, and it is taken as true by the court? That seems insane.

[QuantumBoxCat]

From the opinion:

As a devout Christian, Plaintiff “sincerely believes that receiving a vaccine that was derived from or tested on aborted fetal tissue in its development would violate her conscience and is contrary to her faith.” Also, Plaintiff believes that to inject her body “with a novel substance of unknown long-term effects” such as a COVID-19 vaccine would violate her belief that her “body is the temple of the Holy Spirit.” Consequently, she faces the choice of complying with the Air Force’s order to receive a COVID-19 vaccine or violating her religious beliefs.

[MollyGodiva]

Christians never had this absolute opposition to medicines that are connected to fetal tissue until the covid vaccine. And they still happily use all the other medications that connected to fetal tissue. So they really just don't like the covid vaccine, and it has nothing to do with religion.

[Bored Lawyer]

Really, you surveyed all Christian beliefs? Or you think that all "Christian" beliefs are uniform?

[MollyGodiva]

I am referring the the dominant denominations of Christianity that make up 95% of US Christians.

[MollyGodiva]

Well even more then that, my point is that these types of objections would have been well known before covid.

[Bored Lawyer]

Why, how many fetus-derived vaccines have been mandated?

[JasonT20]

Which vaccines are "fetus-derived"? Just ones for COVID? Because there have been many vaccines mandated under different circumstances going back many decades. I would expect that military service members have been required to take a lot of vaccines (if they hadn't taken them previously).

Besides, is this aversion to medicine that relied on fetal stem cell lines that have been around for 30+ years and not wanting to inject or ingest substances 'untested' for long term effects something that the plaintiff has been applying in her life for a long time, or did she just discover that she should pay attention to it when the COVID vaccines came out and the Air Force started requiring them? If those questions and their answers were not considered or asked by the judge, then he is being biased by simply accepting her sincerity.

[Toranth]

So you surveyed 95% of US Christians?
By the way, what are the current opinions of the "dominant denominations of Christianity" that you think these objectors belong to? Have you verified the names of the objectors on the Federal Religion Registry lists?

Or are you just assuming that you a) know what the all denominations believe, and b) what specific beliefs these objectors have?

[Dilan Esper]

Right. And as always, the legal system's shyness at litigating sincerity is a big mistake.

If someone wants to claim the fetal tissue or "body is a temple" exemptions (which, by the way, are suggested to them by right wing anti-vax websites), they should have to demonstrate a consistent abstention from anything made of fetal tissue or any artificial substances over time. Otherwise, they should lose.

[Noscitur a sociis]

And as always, the legal system's shyness at litigating sincerity is a big mistake.

The shyness is entirely on the part of the government defendants. I hope they muster some fortitude going forward.

[Rossami]

On the contrary, there is no shyness at all about litigating sincerity. That's a key element of the claim. It's not coming up in this case because the military failed to uncover any evidence that the claim is insincere.

It could be because the Air Force didn't think they had to bother looking - in which case, they should lose. Or it could be because they did look and confirmed that this applicant's claim is sincere - in which case, they again lose. I'll put my money on the former but they lose either way.

[QuantumBoxCat]

I say eliminate any and all exemptions to getting vaccinated, and see how it plays out.

My hunch is that people with a religious opposition will still sue, while those with legitimate health-related issues would also file suit. Let the courts tell the person with sincere religious beliefs that they are not entitled to an accommodation because the policy does not allow any exemptions. Let the courts tell the person with health-related concerns that they are also not entitled to an accommodation, and must chose between their livelihood or their health/life.

In other words, let the courts resolve the policy issue.

[Bored Lawyer]

I think something like this happened somewhere (California). There was an exemption for pregnant women, and a court found it violated the First Amendment. So that exemption was repealed, and the law was then neutral.

[Vandalia]

This is all about 30 years too late for me.

My sincere religious beliefs prohibited me from getting up before 10 am and prohibited any physical training of physical fitness testing ...

[Dilan Esper]

Plaintiff's natural immunity coupled with other preventive measures begs the question: Does a COVID-19 vaccine really provide more sufficient protection?

This isn't the court's call. The Air Force decides that. Since when do we not defer to military commanders as to how to run the military?

[Michael P]

Rather obviously, the Air Force does not decide whether convalescent immunity is more or less protective than vaccine-based immunity. The US is rather a rogue government in this regard: Most civilized, science-friendly countries recognize that convalescent immunity is at least as strong as what people get from vaccines.

Also, didn't anyone ever teach this court what "begs the question" means?

[Dilan Esper]

Rather obviously, the Air Force does not decide whether convalescent immunity is more or less protective than vaccine-based immunity.

They don't have to. They can just decide that it's better that troops who serve together in the military take vaccinations. I don't think their reasoning is even reviewable in federal court.

[Toranth]

That's a reasonable position: All service members must be vaccinated, no exceptions.

But that's not what the Air Force is arguing for.

[DStraws]

Yes but to achieve convalescent immunity you have to take a significantly higher risk--getting the disease! Which results in two downsides, transmission within the society and death to the infected.

[RhymesWithRight]

Maybe it is time to reconsider the breadth of RFRA.

[fafalone]

Why even entertain these fake religious exemptions as sincere? Did they object the dozen other vaccines the military gave them? For the objections based on cell line testing, have they objected to basically every other medication including OTC ones? No? It's a right wing politics based exemption, not a religious exemption. Or have thousands of servicemen just suddenly developed brand new religious beliefs out of the blue for spiritual reasons? Of course not. Political beliefs should not be held to be religious beliefs.

Also love how the judge has declared himself arbiter of medical fact to push the long debunked myth that natural immunity is generally comparable to vaccine induced immunity, when that's rarely true and rapidly diverges.

[Edmund Burke's Hastings spy]

Well, that's the military lying, nothing in the signup papers that allows them to force a vaccine on you that (turns out) to be harmful anyway.