Two months after losing the clash over its vaccine mandate for large companies, the Biden administration has returned to the Supreme Court for help in a separate but related case.

On Monday, the Department of Justice asked the court to overturn part of a ruling against its mandate for members of the Navy, which has been challenged on religious freedom grounds. Solicitor General Elizabeth Prelogar argued that the lower court’s decision puts the country at risk.

“Even one SEAL who falls ill — as an unvaccinated individual is far more likely to do — can jeopardize an entire mission,” she wrote.

Others, including a district court judge in Texas, believe the Biden administration is overstating the value of COVID-19 vaccination. The Supreme Court should side with service members and leave the lower court ruling in place, said Mike Berry, general counsel for First Liberty Institute, the law firm representing the 35 members of the Navy challenging the mandate.

“Ensuring that nobody in the military is a victim of religious discrimination should be a more compelling interest than pushing an ideological agenda,” he said.

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Case background

The fight over the Navy’s COVID-19 policies originated in November, when the group of service members, which includes 26 Navy SEALs, filed their lawsuit in federal court. They allege that military officials have violated the First Amendment and Religious Freedom Restoration Act by mishandling religious exemption requests.

In January, U.S. District Court Judge Reed O’Connor sided with the service members and issued a preliminary injunction protecting them from facing consequences for their faith-based opposition to COVID-19 vaccines. He said that the Navy violated the law both by refusing religious exemption requests and by treating religious objectors worse than those exempted from the mandate for medical reasons.

“There is no COVID-19 exception to the First Amendment. There is no military exclusion from our Constitution,” O’Connor wrote.

Legal experts described the ruling as surprising since judges typically show more restraint in cases involving military affairs. In the past, courts often deferred to government officials’ judgment, even when policies raised religious freedom concerns, said Micah Schwartzman, a law professor at the University of Virginia, to the Deseret News earlier this year.

“It’s quite surprising to see federal judges intervening in the middle of a pandemic to regulate how the military sets its policy with respect to vaccination. That’s not something we’ve seen before,” he said.

After O’Connor issued his ruling, First Liberty moved to turn the case into a class-action suit. If successful, that request would make it so that future rulings in favor of the 35 service members benefit all in the Navy seeking religious exemptions from the vaccine mandate.

That motion and others are now pending at the district court level as the Biden administration appeals O’Connor’s original ruling in the case. After the 5th U.S. Circuit of Appeals upheld the preliminary injunction, the Justice Department turned to Supreme Court Justice Samuel Alito, who oversees requests out of the 5th Circuit, for help.

What will happen next?

In the emergency application filed with Alito on Monday, the Biden administration does not ask for O’Connor’s whole ruling to be tossed out. Instead, the brief focuses on the part of the injunction affecting “deployment, assignment and operational decisions,” and urges the court to allow Navy officials to set and enforce their own mission readiness standards.

“The Navy has an extraordinarily compelling interest in ensuring that the service members who perform these missions are as physically and medically prepared as possible. That includes vaccinating them against COVID-19,” Prelogar wrote.

After receiving the request, Alito asked the group of Navy service members to file a response, which is due on Monday, March 14. Berry said First Liberty is currently working on that brief and plans to challenge the Justice Department’s characterization of the lower court ruling.

“If you read the solicitor general’s emergency stay motion, you’d think that we’ve got judges commandeering the military,” he said.

Once Alito has the service members’ response, it’s up to him to decide whether to issue a decision on his own or refer the case to the full court. Regardless of what path Alito chooses, there should be some determination on the government’s request within the next one to two weeks.

Although Alito joined the majority in January to rule against the federal vaccine mandate for large companies, some legal experts believe he and other justices may be on the government’s side this time. As Schwartzman noted in January, the court is generally more deferential to military officials than to other types of policymakers.

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Whatever the Supreme Court says, the decision will likely affect other mandate battles.

In Georgia, an Air Force officer with faith-based objections to the vaccines recently won a preliminary injunction against COVID-19 rules. Her law firm, the Thomas More Society, is now seeking to turn her lawsuit into a class-action suit, just as First Liberty is doing in the Navy case.

Berry believes religious objectors to military vaccine mandates will eventually prevail, even if they don’t win every step along the way. In the short term, he’s looking forward to seeing the Navy case move forward after months of wrangling over the preliminary injunction.

“We look forward to having our full day in court and having a ruling on the merits,” he said.

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