The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Fifth Circuit Refuses to Let Navy Enforce Vaccination Rules Against Religious Objectors
From U.S. Navy Seals 1-26 v. Biden, decided yesterday by the Fifth Circuit (by Judges Edith Jones, Kyle Duncan, and Kurt Engelhardt):
The district court preliminarily enjoined the Department of Defense … from enforcing certain COVID-19 vaccination requirements against 35 Navy special warfare personnel and prohibited any adverse actions based on their religious accommodation requests. It later declined to stay the injunction. Defendants now seek a partial stay pending appeal insofar as the injunction precludes them from considering Plaintiffs' vaccination statuses "in making deployment, assignment and other operational decisions." The Navy has granted hundreds of medical exemptions from vaccination requirements, allowing those service members to seek medical waivers and become deployable. But it has not accommodated any religious objection to any vaccine in seven years, preventing those seeking such accommodations from even being considered for medical waivers. We DENY Defendants' motion….
As the Supreme Court has noted, RFRA affords even "greater protection for religious exercise than is available under the First Amendment[]" and provides that the:
Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.
"[T]he 'exercise of religion' often involves not only belief and profession but the performance of (or abstention from) physical acts[.]" And "a government action or regulation creates a 'substantial burden' on a religious exercise if it truly pressures the adherent to significantly modify his religious behavior and significantly violates his religious beliefs." Once a plaintiff demonstrates a substantial burden on his exercise of religion, "RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law 'to the person'—the particular claimant whose sincere exercise of religion is being substantially burdened." This already high bar is raised even higher "[w]here a regulation already provides an exception from the law for a particular group[.]"
The Navy does not even dispute that its COVID-19 vaccination requirements substantially burden each Plaintiff's free exercise of religion, but the nature of the injury bears emphasis. Plaintiffs have thoughtfully articulated their sincere religious objections to taking the vaccine itself. Accepting the vaccine would directly burden their respective faiths by forcing them to inject an unremovable substance at odds with their most profound convictions. This injury would outlast their military service, making the decision whether to acquiesce far more difficult than just choosing between "their job(s) and their jab(s)." The vaccine requirements principally compete against their faiths and secondarily against their livelihoods. These circumstances impose a substantial burden on Plaintiffs.
In an attempt to subordinate Plaintiffs' protected interest, the Navy focuses instead on its institutional interests. Defendants' position is that:
The Navy has an extraordinarily compelling interest in requiring that service members generally—and these plaintiffs in particular—be vaccinated against COVID-19, both (1) to reduce the risk that they become seriously ill and jeopardize the success of critical missions and (2) to protect the health of their fellow service members.
The Navy has been extraordinarily successful in vaccinating service members, as at least 99.4% of whom are vaccinated. {As the district court explained in denying Defendants' stay motion, statistically speaking, "vaccinated servicemembers are far more likely to encounter other unvaccinated individuals off-base among the general public than among their ranks."} But that general interest is nevertheless insufficient under RFRA. The Navy must instead "scrutinize[] the asserted harm of granting specific exemptions to particular religious claimants." "The question, then, is not whether [the Navy has] a compelling interest in enforcing its [vaccination] policies generally, but whether it has such an interest in denying an exception to [each Plaintiff]." And RFRA "demands much more[]" than deferring to "officials' mere say-so that they could not accommodate [a plaintiff's religious accommodation] request." That is because "only the gravest abuses, endangering paramount interests, give occasion for permissible limitation[]" on the free exercise of religion.
Defendants have not demonstrated "paramount interests" that justify vaccinating these 35 Plaintiffs against COVID-19 in violation of their religious beliefs. They insist that "given the small units and remote locations in which special-operations forces typically operate, military commanders have determined that unvaccinated service members are at significantly higher risk of becoming severely ill from COVID-19 and are therefore medically unqualified to deploy." But "[r]outine [Naval Special Warfare] mission risks include everything from gunshot wounds, blast injuries, parachute accidents, dive injuries, aircraft emergencies, and vehicle rollovers to animal bites, swimming or diving in polluted waters, and breathing toxic chemical fumes." There is no evidence that the Navy has evacuated anyone from such missions due to COVID-19 since it instituted the vaccine mandate, but Plaintiffs engage in life-threatening actions that may create risks of equal or greater magnitude than the virus.
More specifically, multiple Plaintiffs successfully deployed overseas before and after the vaccine became available, and one even received a Joint Service Commendation Medal for "safely navigating restricted movement and distancing requirements" while deployed in South Korea between January and June 2020. {During this deployment, [Plaintiff] Navy EOD Technician 1 completed 76 joint service engagements with 21 U.S. and Korean partner forces, all while maintaining effective COVID-19 mitigation tactics in compliance with CDC guidelines.} Plaintiffs also trained other SEALs preparing for deployments at various points during the pandemic while remaining unvaccinated.
The Navy's alleged compelling interest is further undermined by other salient facts. It has granted temporary medical exemptions to 17 Special Warfare members, yet no reason is given for differentiating those service members from Plaintiffs. That renders the vaccine requirements "underinclusive." And "underinclusiveness … is often regarded as a telltale sign that the government's interest in enacting a liberty-restraining pronouncement is not in fact 'compelling.'" See also Holt v. Hobbs (2015) (a policy was substantially underinclusive where a prison "denied petitioner's request to grow a ½-inch beard [for religious reasons] [while permitting] prisoners with a dermatological condition to grow ¼-inch beards."). Moreover, in none of the letters denying religious accommodations to these Plaintiffs has the Navy articulated Plaintiff-specific reasons for its decisions. {On the contrary, some of the remarks uttered by superior officers to Plaintiffs could be regarded as outright hostile to their desire for religious accommodations.} Further evidencing that there is a pattern of disregard for RFRA rights rather than individualized consideration of Plaintiffs' requests, the Navy admits it has not granted a single religious accommodation. Yet surely, had the Navy been conscientiously adhering to RFRA, it could have adopted least restrictive means to accommodate religious objections against forced vaccinations, for instance, to benefit personnel working from desks, warehouses, or remote locations.
Considering the record as a whole, we agree with the district court that Defendants have not shown a compelling interest to deny religious accommodations to each of these 35 Plaintiffs. Indeed, the "marginal interest" in vaccinating each Plaintiff appears to be negligible; consequently, Defendants lack a sufficiently compelling interest to vaccinate Plaintiffs….
