The Volokh Conspiracy
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Another Injunction Against the Military as to Religious Exemptions from COVID Vaccination Mandate
From Judge Steven Merryday's opinion today in Navy Seal 1 v. Biden (M.D. Fla.):
Here is the short version: Expressly applicable to each branch of the federal government, the Religious Freedom Restoration Act (RFRA) commands the military to grant to a service member harboring a sincerely held religious objection to COVID-19 vaccination a religious exemption from the vaccination (1) unless a compelling overnmental interest requires the vaccination and (2) unless a good faith evaluation, directed specifically to the singular circumstances of the service member—that is, directed "to the person" requesting the exemption—demonstrates that no less restrictive means is available to the military reasonably to protect the compelling governmental interest. Under the command of RFRA, the military bears the burden of showing both the existence of a compelling governmental interest and the absence of a less restrictive means of reasonably protecting that interest.
In the instance of Navy Commander and Lieutenant Colonel 2, the Navy and the Marine Corps have failed manifestly to offer the statutorily required demonstration that no less restrictive means is available, and each of the two service members is entitled to preliminary injunctive relief that (1) permits them, pending a final determination on a complete record, to continue to serve without the vaccination and (2) forbids any punitive or retaliatory measure against either by the military pending a final judgment in this action.
The long version follows.
