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.

Comments

[Rev. Arthur L. Kirkland]

Choose reason. Every time.

Choose reason. Every time. Especially over sacred ignorance and dogmatic intolerance.

Choose reason. Every time. Most especially if you are older than 12 or so. By then, childhood indoctrination fades as an excuse for backwardness, ignorance, gullibility, and bigotry. By adulthood — this includes ostensible adulthood, even in the most desolate, can’t-keep-up backwater one might find — it is no excuse.

Choose reason. Every time. And education, modernity, tolerance, science, inclusiveness, and progress. Avoid superstition, bigotry, insularity, backwardness, childish dogma, ignorance, and pining for good old days that never existed. Not 75 years ago. Not 175 years ago. Not 2,000 years ago. Never.

Choose reason. Every time. Be an adult.

Or, at least, please try.

Thank you.

[Joe_dallas]

absolutely choose reason

Can you provide a coherent and valid scientific / medical reason to mandate a vaccine that is very ineffective for currently dominant covid variant. There is a valid medical reason for vaccine that is effective for up to 6 months for the delta & alpha variant.

[Rev. Arthur L. Kirkland]

I am not an epidemiologist or vaccinologist.

Are you?

Or are you just another alienated, antisocial, obsolete, science-disdaining wingnut attracted to this white, male, movement conservative blog, eager to nip at the ankles of the culture war’s victors?

[Joe_dallas]

I am just a normal individual keeping up with the evolving science of covid.

At this point it is common knowledge that the vaccines effectiviness against the omicron strain is very weak, with most studies showing less than 30% after only 2-3 months.

so again – give us a coherent reason to mandate a ineffective vax against the current dominant covid strain.

[Joe_dallas]

I am certainly not the vile racist which is the dominant trait of the Rev

[arch1]

I am optimistic that in the fullness of time RFRA will be remembered as one of the purest exemplars of second-millennium American irrationality.

[Krayt]

Humanity is still losing people hand over fist in religious wars, and tyranny aided by charismatic demagogues using religion to raise armies, or armies of voters, to take power and smash other religions (read: smaller groups as per standard political behavior.)

The religious detente in the First Amendment has been a major success in thwarting this. However, it also includes forbidding atheism doing the smashing.

Yes, religion is fakery used for power and wealth.

No, the anti-religious impulse doesn’t get the honor of doing so, either, for the exact same reason.

[arch1]

How would the simple principle that beliefs are beliefs, no favored subset of which should be privileged for e. g. Some bizarre combination of content and *ir*rationality, constitute the smashing of religion by atheism?

It is bizarre that in an ostensibly advanced modern society the notion that ideas should stand or fall on their merits is thought radical and subversive. Too many ideas have been propped up for too long by other means (force of arms, RFRA-like measures, the bizarre meta belief that faith aka superstition is a virtue, etc.). We should exalt instead apprehension of, and dealing with, reality.

[Rev. Arthur L. Kirkland]

The Congregation Of Exalted Reason is for everyone, if they have the perspicacity to recognize it.

[John F. Carr]

In the fullness of time the RFRA will be highly obscure. It hardly does anything when viewed in the context of the government as a whole. New Deal, Great Society, War on Drugs, those all belong in a class on 20th century American history. In the big picture it doesn’t matter if a few thousand soliders are kicked out or allowed to serve, whether for vaccine refusal now or gay thoughts in the 1990s.

[arch1]

If it’s direct effects were zero it would still be remembered as one of the clearest (House unanimous, Senate 97%) indicators of our culture’s deep institutional irrationality in this relatively benighted time. And irrationality underlies all of the greatest dangers we face.

[Joe_dallas]

The vaccines are very ineffective against the omicron variant-

What is the purpose of mandating a vaccine which is now the equivalent to a flu shot for last years flu strain.

[Life of Brian]

The innocent take: rapidly mutating respiratory virus meets plodding bureaucratic inertia.

The jaded take: admitting the vaccines aren’t even close to a silver bullet would raise too many inconvenient questions about whether they should have been mandated at all, so on we dutifully trundle into the abyss.

[Stephen Lathrop]

Brian, any comment on emergency power to impose vaccination, in the case of an effective vaccination against an extremely lethal contagion?

Hypothetically, a virus as contagious as measles and as deadly as weaponized smallpox, for instance?

More generally, should laws to protect individual liberties against emergency powers apply alike all the time, or differently according to circumstances? And if it is the latter, should courts be the arbiters of the circumstances?

[Ridgeway]

Shouldn’t this be a pretty easy question one way or the other? Don’t the armed Forces mandate a whole host of vaccines? Are RFRA objections available against any of them? Why would the COVID vax be treated any differently than any other vax?

[Life of Brian]

Don’t the armed Forces mandate a whole host of vaccines? Are RFRA objections available against any of them?

Yes and yes. The general vaccine religious exemption procedures for the Navy and Marines are discussed on pages 5-9 of the linked opinion. An overview of the general vaccine exemption process in the armed services, including religious exemptions, is available here.

That said, I don’t think there’s any dispute here that COVID vaccination is subject to RFRA. The question is whether the various military branches’ exemption processes, as implemented, satisfy the RFRA requirements.

[Dilan Esper]

I think these military cases may be the ultimate expression of our polarized era.

Because prior to COVID, basically everyone would have said that a federal court telling the military that they must allow servicemembers to carry a deadly communicable disease that could kill their fellow servicemembers is patently ridiculous. Not only on grounds that it meets any level of scrutiny, but also in terms of the federal courts interfering in military affairs and getting servicemembers killed.

But now, the conservative movement in this country has gotten so deranged that they cheer this stuff on.