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Religion and the Law

Supreme Court Issues Stay, Favoring Navy, in Navy Seals COVID Vaccination Religious Exemption Case


In today's Austin v. U.S. Navy Seals 1–26, the Supreme Court stayed "[t]he district court's January 3, 2022 order, insofar as it precludes the Navy from considering respondents' vaccination status in making deployment, assignment, and other operational decisions … pending disposition of the appeal in the United States Court of Appeals for the Fifth Circuit and disposition of the petition for a writ of certiorari, if such writ is timely sought." (The Fifth Circuit had earlier denied the stay.) The Court didn't explain its reasoning, but one member of the majority, Justice Kavanaugh, did:

I concur in the Court's decision to grant the Government's application for a partial stay of the District Court's preliminary injunction for a simple overarching reason: Under Article II of the Constitution, the President of the United States, not any federal judge, is the Commander in Chief of the Armed Forces. In light of that bedrock constitutional principle, "courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs." As the Court has long emphasized, moreover, the "complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments." Therefore, it is "difficult to conceive of an area of governmental activity in which the courts have less competence." …

[E]ven accepting that RFRA applies in this particular military context, RFRA does not justify judicial intrusion into military affairs in this case. That is because the Navy has an extraordinarily compelling interest in maintaining strategic and operational control over the assignment and deployment of all Special Warfare personnel—including control over decisions about military readiness. And no less restrictive means would satisfy that interest in this context.

The Court "should indulge the widest latitude" to sustain the President's "function to command the instruments of national force, at least when turned against the outside world for the security of our society." That fundamental principle applies here. As Admiral William Lescher, Vice Chief of Naval Operations, explained: "Sending ships into combat without maximizing the crew's odds of success, such as would be the case with ship deficiencies in ordnance, radar, working weapons or the means to reliably accomplish the mission, is dereliction of duty. The same applies to ordering unvaccinated personnel into an environment in which they endanger their lives, the lives of others and compromise accomplishment of essential missions."

In sum, I see no basis in this case for employing the judicial power in a manner that military commanders believe would impair the military of the United States as it defends the American people.

(Note that Justice Kavanaugh isn't arguing, as I understand it, that the President has exclusive powers here; article I, after all, gives Congress the power "To make Rules for the Government and Regulation of the land and naval forces," and RFRA, as applied to the military, may well be such a rule. Rather, I take it that he's arguing that courts ought to be especially hesitant preempting the Executive's judgment in applying any such legislation to the military's operations.)

Justices Thomas, Alito, and Gorsuch would have denied the application; Justice Alito explained his reasoning thus, joined by Justice Gorsuch:

By rubberstamping the Government's request for what it calls a "partial stay," the Court does a great injustice to the 35 respondents—Navy Seals and others in the Naval Special Warfare community—who have volunteered to undertake demanding and hazardous duties to defend our country. These individuals appear to have been treated shabbily by the Navy, and the Court brushes all that aside. I would not do so, and I therefore dissent….

The [religious] exemption procedure that the Navy set up included no fewer than 50 steps, and during the first 35 steps, none of the various officials who processed requests gave any consideration to their merit. Instead, a form letter rejecting each request was prepared and sent to seven offices for review. A package of rejection letters was then assembled, together with a memo asking the vice admiral who served as a deputy chief of naval operations to sign the rejection letters. Only at step 35 was someone in this chain told to read the exemption requests, but it appears that this individual was not given an opportunity to recommend that a request be granted. Instead, this person's sole task was to record pertinent information on a spreadsheet and send the package on to the vice admiral.

Given the nature of this procedure, the results it produced are not surprising. Although more than 4,000 exemption requests had been submitted by February 15, 2022, not a single one had been approved when the complaint in this case was filed….

As I will explain, the Court's order essentially gives the Navy carte blanche to warehouse respondents for the duration of the appellate process, which may take years. There is no justification for this unexplained and potentially career-ending disposition….

In order to obtain a stay, the Government must show, among other things, that it is likely to succeed in defeating respondents' RFRA and free exercise claims, and it cannot make that showing….

Under the clear terms of RFRA, all components of the Federal Government are forbidden to burden a person's exercise of religion unless the Government can demonstrate that the burden represents the least restrictive means of furthering a compelling interest. The Government does not claim that Article II imperatives absolve the Navy's chain of command from complying with RFRA, and it concedes that the statute applies to the military….

Here, it is not disputed that compliance with the vaccination requirement would impose a substantial burden on respondents' free exercise of religion. Therefore, the two remaining questions are (1) whether the Navy's mandatory vaccination program furthers compelling interests and (2) whether the denial of respondents' exemptions represents the least restrictive means of furthering such interests.

As to the first question, I agree that the Navy has a compelling interest in preventing COVID–19 infection from impairing its ability to carry out its vital responsibilities, as well as a compelling interest in minimizing any serious health risk to Navy personnel. But the Navy's summary rejection of respondents' requests for religious exemptions was by no means the least restrictive means of furthering those interests. This is so for at least two reasons.

First, all the evidence available at this stage suggests that the Navy gave no real consideration to respondents' requests, and the Navy had no compelling need to proceed in that fashion. I cannot believe that this Court would tolerate such treatment in other contexts. Suppose, for example, that a federal agency processed employee complaints about discrimination on the basis of race, sex, or disability using a 50-step process in which rejection was presumed until the very last step, and suppose that the record showed that this procedure nearly always resulted in the denial of a claim. We would be outraged—and rightfully so. Why, then, is the Court willing to brush aside what appears to have occurred here?

Second, even if we ignore what the Navy did and accept the justification for the denials that Justice Department lawyers later provided in court, the relief that the Court now awards goes well beyond anything that can possibly be regarded as the least restrictive means of further compelling Navy interests. Focusing primarily on the Seals, the Government stresses certain characteristics of Seal missions, including small unit size, the frequent need to work at very close quarters, and the remote and often inaccessible locations in which such missions are carried out. Due to those characteristics, the Government argues, there is a heightened danger that the COVID–19 virus will spread, as well as a special need to minimize the risk that a mission will be compromised by a sick team member who is unable to perform assigned tasks with maximum effectiveness.

In order to win at trial, it would not be enough for the Government to posit that sending an unvaccinated Seal on such a mission might produce such consequences. A court could not simply defer to the Navy's opinion, and mere "conjecture" or "speculation" would not be enough. The Government would bear the burden of showing that mandatory vaccination is the least restrictive means of furthering the interest it asserts in light of the present nature of the pandemic, what is known about the spread of the virus and the effectiveness of the vaccines, prevalent practices, and the physical characteristics of Navy Seals and others in the Special Warfare community.

Whether the Government will be able to make the requisite showing remains to be seen, but for the purposes of considering interim relief that is sought in an emergency application, I am willing to accept the Navy's need to refrain from sending unvaccinated Seals on the types of missions the Government has described. But participating in such missions is not the only thing that respondents do, and the relief that the Government sought and that the Court now awards goes much further. Using the terminology selected by the Government, the Court stays the preliminary injunction with respect to decisions about "deployment," "assignment," and "other operational decisions."

The Government has not told us what these terms mean, but without any contrary guidance, we must assume that they will be interpreted in accordance with the definitions in the Department of Defense Dictionary of Military and Associated Terms (DOD Dictionary). And as defined in that dictionary, the terms seemingly allow the Navy to do just about anything it wants short of punishing respondents and drumming them out of the service.

"Deployment" is defined as "[t]he movement of forces into and out of an operational area," and an "operational area" seems to mean any "geographic are[a]" where the Navy might carry out "a strategic, operational, tactical, service, training, or administrative military mission." Thus, sending a respondent somewhere for training or administrative purposes may constitute a deployment.

The term "assignment" appears to include detailing an individual to perform any duties on something more than a temporary basis. And an "operational decision" apparently can include the carrying out of any "strategic, operational, tactical, service, training, or administrative military mission."

Putting all this together, it appears that the Court's order allows the Navy to use respondents' unvaccinated status as a reason for directing them to perform whatever duties or functions the Navy wants, including sitting alone in a room pushing paper or reading manuals for the duration of the appellate process. It is squarely within the judicial power of Article III to assess whether the Government has shown that it has a compelling interest in obtaining this breadth of equitable relief pending appeal. The Government has not done so.

I would not rubberstamp the Government's proposed language. While I am not sure that the Navy is entitled to any relief at this stage, I am also wary, as was the District Court, about judicial interference with sensitive military decision making. Granting a substantial measure of deference to the Navy, I would limit the order to the selection of the Special Warfare service members who are sent on missions where there is a special need to minimize the risk that the illness of a member due to COVID–19 might jeopardize the success of the mission or the safety of the team members. This, I believe, was the aim of the District Court, and respondents themselves understand the preliminary injunction that way….

Respondents are also likely to prevail on their claims under the Free Exercise Clause. Under our case law, if the Federal Government or a State treats conduct engaged in for religious reasons less favorably than similar conduct engaged in for secular reasons, that treatment is unconstitutional unless the relevant jurisdiction can satisfy "strict scrutiny," which is essentially the same as the standard imposed by RFRA.

That "[o]ur review of military regulations challenged on First Amendment grounds" is deferential does not "render entirely nugatory in the military context the guarantees of the First Amendment." Goldman v. Weinberger (1986). "This Court has never held … that military personnel are barred from all redress in civilian courts for constitutional wrongs suffered in the course of military service."

Here, the Navy treated service members who applied for medical exemptions more favorably than those who sought religious exemptions. For one thing, requests for medical exemptions were seriously considered, and quite a few were granted, at least on a temporary basis…. "[T]he Navy acknowledges that it has granted hundreds of medical exemptions from the COVID–19 vaccine, at least 17 of which were temporary medical exemptions for those in Naval Special Warfare" …. In addition, service personnel with medical exemptions are not restricted as severely as respondents will be under the Court's order. App. 42a. Indeed, the District Court found that under Navy policy those participating in clinical trials and those with medical contraindications and allergies to vaccines remained deployable, unlike those seeking religious accommodations. The Navy has no interest in different treatment for accommodation requests that produce otherwise identical outcomes. I would therefore specify in the Court's order that the Navy must provide equal treatment for all unvaccinated service members….

Today, the Court brushes aside respondents' First Amendment and RFRA rights. But yesterday, the Court handed down another decision that illustrates the strong protection for religious liberty that is provided by the framework that applies under RFRA and strict scrutiny. The decision in question, Ramirez v. Collier, involved a convicted murderer awaiting execution and his rights under the Religious Land Use and Institutionalized Persons Act of 2000, which, among other things, essentially requires prisons to comply with the RFRA standard.

Ramirez argued that his exercise of religion will be burdened unless Texas allows his pastor to lay hands on him and pray aloud while he is being executed. Ramirez was less than punctilious and consistent in requesting a religious accommodation, but the Court's decision forgave all that. Texas objected to Ramirez's request on the ground that the pastor's conduct might interfere with the execution, but the Court held that the State failed to discharge its burden to substantiate the likelihood of such harm.

The contrast between our decision in Ramirez yesterday and the Court's treatment of respondents today is striking. We properly went to some lengths to protect Ramirez's rights because that is what the law demands. We should do no less for respondents.

NEXT: Short Circuit: A Roundup of Recent Federal Court Decisions

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  1. So much wasted paper and energy over something thats pretty much disappeared as of now.

    1. not so - Sotomayer said there are tens of thousands of children on respirators ! or was that 100s of thousands of children on respirators?

      Sarc aside, the infection rate per 100k in nov / dec 2021 was around 240 per day, and now it is less than 10 per day per 100k and will continue to drop - just like every prior pandemic. As noted by those who are actually using current data, the effectiveness of the vaccine against the omicron strain is very limited.

      In summary, Amos's comment is spot on

      1. Therefore, it is "difficult to conceive of an area of governmental activity in which the courts have less competence."

        No it's not. They have no competence in any technical field. The idiocy of the know nothing Supreme Court results in hideously damaging, wrong decisions, devastating the economy, and safety of the nation. That includes criminal sentencing. They are all idiot savants who memorized 7000 rules 80 hours a week, and know nothing about anything else, not even common life. They stink.

      2. As noted by those who are actually using current data and are honest, the effectiveness of the vaccine against the omicron strain is high.

        1. The vaccine is only marginally effective against omicron for 2-3 months, then drops to around a 30% effectiveness. Probably close to less than 10% effectiveness after 6 months.

          see studies from qatar, israel, uk, etc

          1. 1) Quoting a singular study
            2) that does not discuss severity reduction

            Come on, man.

            1. Also "This article is a preprint and has not been peer-reviewed."

              1. Almost all the current studies are pre prints, especially with the omicron virus.
                Peer review takes minimum 3-6 months
                With covid, those studies are often out of date, virtually all the studies regarding omicron are pre print

                1. This does not mean you throw out peer review.

                  1. As of March 26, 2022 there are about 50-60 pre prints of studies omicron and likely less than 4-5 peer reviewed studies regarding omicron.

                    1. This is like looking for your walled a block away because the light is better.

                    2. "This is like looking for your walled a block away because the light is better."

                      ISTM it is more like using the best info currently available.

                      (I'm talking about looking at pre-prints if they are all that is available, not what any particular pre-print says. Not having gold plated info isn't the same as not having any info.)

            2. This blog does not lend itself to posting citations, due to the apparent cap of one link per citation. I tried posting some citations, but it just gets blocked in never-ending moderation.

              See the research of PECC (

        2. David,

          What data exactly are you using? You say "current data", yet seem to be criticizing Joe's data without providing any of your own.

    2. Agreed. It's a shame these sailors couldn't have taken a deep breath before disgracing themselves with these contrived and disingenuous lawsuits.

      1. It’s a shame that Biden couldn’t have taken a deep breath before disgracing himself with this idiotic and tyrannical policy. And it’s a shame that you couldn’t have done the same before disgracing yourself with this fact-free, moronic post.

        1. It's a shame that people with Covid cannot take deep breaths.

        2. bUt it'S tYrANny

        3. I doubt Biden had much to do with this policy.

    3. Pandemic management tips from disaffected, science-disdaining, superstitious, bigoted, antisocial culture war casualties are always a treat.

      1. Artie, what city have you lived in for a while? I can explain your views from that information.

    4. "So much wasted paper and energy" is the DoD's modus operandi.

  2. Kavanaugh's 100% right. Indeed, I think the lower court judges lost the plot here, in the same way that Justice Douglas lost the plot when he tried to enjoin the bombing of Cambodia. Federal judges have a lot of power, but it should be obvious to anyone that they don't get to issue orders to the military on stuff like deployment and combat operations.

    1. They obviously do lol - judicial deference to the military is nowhere in the Constitution and is, ironically, entirely a judicial invention.

      1. What are you talking about? Article II says that the President is commander in chief of the armed forces, and Article I grants Congress the power to make the rules. Meanwhile, command decisions are in no way a "judicial power", which is the only power courts have under Article III. Of course it's in the text.

        1. Harking back to the principle that the Executive executes---quickly, sometimes in secret, sometimes with force---and the Legislature sets rules around who, with what, trained how, and how long the Executive can do so without having to get their agreement. We get to hear the Legislators arguing over it so we know what's in their heads as the process grinds on.

          Imagine going to the Supreme Court seeking to declare a war. "Did they do it today?" "Nah, it's still in conference. Maybe next week. The Wise Latina is probably the holdout and she's trying to get the CJ to switch."

          1. And Douglas' order stopping the bombing of Cambodia, which was quickly reversed by the rest of the Justices at the instigation of Thurgood Marshall(!), is the reverse of that scenario.

    2. Nope. Kav (and Barrett) are disappointments because they favor totalitarian rulings even against our military.

      Courts absolutely have say over military affairs. The president is only commander in chief during a war. And we have no declared wars. Ergo Kav is wrong.

      1. The president is only commander in chief during a war.

        I see you have your own special version of the constitution.

        1. David, how do you do the indent-thing on this site? I know how on reddit, but not here.

          1. It's just manual HTML coding. It's the blockquote tag.


            (But without the spaces, of course.)

            1. Oh, even with spaces it still parsed the HTML.

              1. Oh, even with spaces it still parsed the HTML.

                Thank you much.

                1. LIKE THIS?

                  1. Oh, even with spaces it still parsed the HTML.

      2. Man, with logic like that no wonder you spout such bullshit.

        President is commander in chief regardless of war or not. Second, since when is the military NOT required to get vaccines? They line you up in reception and you literally go between two people who stick you with all manners of vaccines.

        These navy seals are absolutely pathetic for even bringing this suit forward.

  3. SCOTUS has previously ruled that banning wearing a yarmulke is a valid deference to the military. So this is in line with prior rulings. Remember that one of these cases was holding up the deployment of an entire Naval ship.

  4. Unless they opposed the other dozen or two shots they received when enlisting, yes the military is right to shitcan these new objections because 99.999 if not 100.0% are based on right wing politics or other non-religious reasons. I don't know why more people haven't taken the route of questioning whether a belief is sincerely held when there's such clear evidence it's not, especially when you add in citing reasons that would require abstention from nearly all medicine if sincerely held.

    I know Gorsuch is a fan of religious supremacy; invoke religion, and now whatever you want to do is beyond reproach. No challenge to your sincerity can be made, no inquiry into reasonableness, no balancing of competing interests. You say it's your religion? Gorsuch is done listening, you win.

    Funny the actual religious cult member isn't even that extreme.

    It's disappointing because outside of that, I tend to agree with or at least respect his arguments.

    1. Those other shots actually worked, had been around for decades, and Are for diseases that actually affect young healthy men. This one wasn't.

      If the government wants to make things up, then it's fair to be able to make things up under religious reasons too. Same rules.

      1. Oh yes, tell us about your huge swathe of research you did to say "this shot doesn't work." Let's compare that to tomes that have actual scientific studies that back it working.

        I'm sure I will die of old age before you produce anything of note.


      2. Your argument demonstrates the original point. Quibbling about vaccine effectiveness is not a religious belief.

        1. Yes, I don't think he thought that one through.

    2. Religious exemptions are misleadingly named. They would more properly be caller "moral exemptions." And yes, it is entirely reasonable to have a moral objection to a subset of something and not too the entire category; in fact, that is how moral objections almost always manifest.

      1. That may be true, but moral beliefs aren't singled out by the constitution for protection from government action, whereas religious beliefs are.

    3. Those shots were tested, or made, with aborted baby parts.

  5. How much did these plaintiffs pay Mrs. Thomas for lobbying or other services?

  6. "Here, it is not disputed that compliance with the vaccination requirement would impose a substantial burden on respondents' free exercise of religion. "

    I dispute it, though for some reason the Navy didn't.

    Every religion I know of can be practiced while having vaccine-induced resistance to COVID-19, and I know of no sacred texts and only one church that forbid vaccination.

      1. You really seem into people you disagree with being miserable.

        That's not a great way to be.

  7. Used to be to graduate from USNA you has to jump from a platform high above the pool into the water. And a judge said "NO!" because too many women were being discharged from the academy because they wouldn't jump, and the jump served no useful purpose- they'd never have to jump from that high into the water!

    The useful exercise was- it was an test to see if you can conquer fear. Something any officer may well be called upon to do at any time. You've seen a few hundred others jump off- but you cannot do it? You don't have the ability to conquer fear.

    Seems judges insert themselves into military matters whenever it's convenient for them.

    In my several trips to firefighting school in the Navy, where you actually enter a burning compartment filled with flames, I've seen exactly two people fail to enter the burning compartment when at the front of the hose- both newly minted female officers. I have to wonder if they jumped...

    And I wonder how many people the instructors at firefighting school see freezing up at that point. And who they are. I'll bet both numbers are a closely held state secret.

    1. What case was this?

      1. Good question, particularly since as far as I know, the 10 meter platform jump is still required for graduation, although there are medical exceptions.

  8. Perhaps we need the equivalent of an Administrative Procedures Act for military regulations.

    And a paperwork reduction act.

  9. "Due to those characteristics, the Government argues, there is a heightened danger that the COVID–19 virus will spread, as well as a special need to minimize the risk that a mission will be compromised by a sick team member who is unable to perform assigned tasks with maximum effectiveness."

    IIRC, Stormship Troopers begins with a dialog of a team leader reading all the troopers' temperatures before stepping off. He orders one guy with a low fever to stand down. He isn't kicked out, he just stands down.

    Military hazmat technicians get all vital signs checked and recorded before going on air, and after they come off air. A tech with high BP doesn't go. He isn't kicked off the team, he just doesn't go that time.

  10. Is there any legally recognized benefit from being deployed, like extra pay? In Massachusetts one of the perks of being a police officer is overtime shifts which often make up a majority of pay. (Show up 15 minutes to watch a pothole being repaired, get paid for a minimum of 4 hours.) A suspension with pay may nevertheless cause a loss of income.

  11. Kavanagh here is merely reciting well-established pre-Smith precedent here. If the armed forces can prohibit wearing a yarmulke, they can surely compel vaccination.

    And the fact that 3 Justices voted to overturn all precedent, and turn Smith from a shield protecting governwmt into a sword to be welded against it, in a shadow-docket case that is supposed to be decided based on existing precedent, is absolutely astonishing.

    And the idea that justices who would find in the Constitution a power of the judiciary to tell the president who to send into combat and who not to would have the temerity to label themselves “conservative” reflects how shamefully that term has been abused by activist judges who are anything but, with no respect for judicial limits or separation of powers. Partisan hacks in robes.

    1. The term is Constitutional Calvinball.

    2. Smith was not an RFRA case; this one is.

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