The Volokh Conspiracy

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Vaccine mandates

Sixth Circuit Upholds Injunction Barring Air Force from Requiring COVID Vaccines for Religious Objectors

From the sounds of it, the Air Force's attorneys didn't think too carefully about how to respond to Religious Freedom Restoration Act (RFRA) claims.


Today the U.S. Court of Appeals for the Sixth Circuit decided Doster v. Kendall, the federal government's appeal of district court decisions enjoining the Air Force from requiring that religious objectors obtain COVID-19 vaccines, and certifying a class of such objectors. The Sixth Circuit affirmed the lower court's decisions in an opinion by Judge Murphy, joined by Judges Bush and Kethledge.

Here is how Judge Murphy summarizes the issues and the court's decision:

The Department of the Air Force has ordered all of its over 500,000 service members to get vaccinated against COVID-19. Some 10,000 members with a wide array of duties have requested religious exemptions from this mandate. The Air Force has granted only about 135 of these requests and only to those already planning to leave the service. Yet it has granted thousands of other exemptions for medical reasons (such as a pregnancy or allergy) or administrative reasons (such as a looming retirement). The 18 Plaintiffs who filed this suit allege that the vaccine mandate substantially burdens their religious exercise in violation of the First Amendment and the Religious Freedom Restoration Act of 1993 (RFRA). Finding that these claims would likely succeed, the district court granted a preliminary injunction that barred the Air Force from disciplining the Plaintiffs for failing to take a vaccine. But its injunction did not interfere with the Air Force's operational decisions over the Plaintiffs' duties. The court then certified a class of thousands of similar service members and extended this injunction to the class.

The Air Force appeals the individual and class injunctions. Its briefs across the two appeals work at cross-purposes. In its challenge to the class-action certification, the Air Force (correctly) states that RFRA adopts an individual-by-individual approach: the Air Force must show that it has a compelling interest in requiring a "specific" service member to get vaccinated based on that person's specific duties and working conditions. Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418, 431 (2006). In its challenge to the Plaintiffs' injunction, however, the Air Force fails to identify the specific duties or working conditions of a single Plaintiff. It instead seeks to satisfy RFRA with the "general interests" underlying its vaccine mandate. Id. at 438. We are thus asked to deny that common questions exist for purposes of certifying a class but to accept that common answers exist for purposes of rejecting all 18 Plaintiffs' claims on their merits.

We decline this inconsistent invitation. Under RFRA, the Air Force wrongly relied on its "broadly formulated" reasons for the vaccine mandate to deny specific exemptions to the Plaintiffs, especially since it has granted secular exemptions to their colleagues. Id. at 431. We thus may uphold the Plaintiffs' injunction based on RFRA alone. The Air Force's treatment of their exemption requests also reveals common questions for the class: Does the Air Force have a uniform policy of relying on its generalized interests in the vaccine mandate to deny religious exemptions regardless of a service member's individual circumstances? And does it have a discriminatory policy of broadly denying religious exemptions but broadly granting secular ones? A district court can answer these questions in a "yes" or "no" fashion for the entire class. It can answer whether these alleged policies violate RFRA and the First Amendment in the same way. A ruling for the class also would permit uniform injunctive relief against the allegedly illegal policies. We affirm.

Based upon the court's opinion, it appears the government's attorneys had not fully thought through their theory of the case(s) and how the various arguments interact –and they got caught. This sort of problem is common in administrative law, where the strongest arguments for one claim may undermine the strongest arguments for another (e.g. claiming an agency action is not a rule may mean it's not a challengable "final agency action" and wasn't required to comply with APA Section 553, but such an argument also foregoes Chevron deference). It is the sort of thing lawyers need to watch out for, particularly when appearing before jurists like Judge Murphy.