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What does the military owe to religious objectors to vaccine mandates?

A case involving 35 Navy servicemembers is raising familiar questions about the military’s relationship with religious freedom

Alex Cochran

In the five months since announcing its COVID-19 vaccine mandate, the Navy has received more than 3,000 requests for religious exemptions. So far, officials have not approved a single one.

Military leaders have said concerns about infection risk, national security and troop readiness justify rejecting even sincere appeals. But some servicemembers believe this approach amounts to religious discrimination.

This fall, 35 members of the Navy sued over officials’ handling of faith-based exemption requests. They’re fighting for the right to sidestep COVID-19 shot requirements without facing career repercussions.

The ongoing case is one of dozens of battles over vaccine mandates currently playing out across the country. A range of employers — from schools to hospitals to police departments — have faced pushback from workers, but the most common target of lawsuits is government officials.

On Friday, the Biden administration will appear before the Supreme Court to defend its mandates for large companies and federally funded health care facilities. One of the key questions in front of the justices is whether the government has the authority to regulate vaccine decisions nationwide.

In the Navy case, which is still at the district court level, the servicemembers are not challenging the COVID-19 vaccine mandate as a whole. Their concern is with the policy’s approach to religious exemptions, which they say violates the First Amendment and a law called the Religious Freedom Restoration Act.

“None of our clients were getting a fair and just review. The outcome was preordained, predetermined, before they even submitted the request,” argued Mike Berry, general counsel for First Liberty Institute, the law firm that filed the case.

Under the Navy’s policy, servicemembers with religious objections to COVID-19 vaccines had to speak with their commanding officer and file an exemption request. Requests were then reviewed by various administrators, who were meant to evaluate them on a case-by-case basis.

However, the 35 servicemembers involved in the suit believe Navy officials never gave their requests a fair shake. To justify this claim, they point to the fact that none of their requests — and no other requests that they’re aware of — have been approved.

“Many people in the military really believe that if they get this vaccine they’re going to face eternal consequences. The military seems to say it doesn’t care,” Berry said.

In a ruling released Monday, a U.S. District Court judge said the Navy is violating religious freedom protections and granted the servicemembers a preliminary injunction. Although officials allow for religious exemption requests, they operate as if disapproval is the only possible response, the decision explained.

“The Navy provides a religious accommodation process, but by all accounts, it is theater,” Judge Reed O’Connor wrote.

The COVID-19 pandemic is a serious crisis, but it doesn’t give the Navy the right to ignore sincere faith-based concerns, he added. Even if the religious exemption requests in question were granted, the Navy would still have a vaccination rate higher than 99%.

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

To Berry and the servicemembers he represents, the injunction is an important step toward a fairer policy.

“The military has to take a step back, go back to its playbook and say, ‘We approached this all wrong.’ They need a completely different approach,” Berry said.

But to others, including some legal experts, O’Connor’s decision is a judicial misstep. Amid a rapidly evolving public health emergency, rulings like these further complicate military officials’ work, said Micah Schwartzman, a law professor at the University of Virginia.

“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.

In the past, the courts have been more deferential to military officials, including in the context of religious freedom cases. For example, in 1986, the Supreme Court ruled that the Air Force did not violate the First Amendment by barring a Jewish officer from wearing his yarmulke. Officials’ interest in upholding uniform standards did not amount to religious discrimination, the justices said.

“In some specialized contexts like the military, the court has exercised some restraint and deferred to officials’ judgment,” Schwartzman said.

However, this approach is not without detractors. Some worry that it has led the military to ignore faith-related accommodation requests that could easily have been addressed.

Even before the pandemic and the vaccine mandates, “the military has had a ham-fisted approach to religious liberty,” Berry said.

He hopes the servicemembers’ recent legal victory will be a wake-up call for the Navy and the military as a whole. It’s possible to keep people safe during the pandemic without trampling religious rights, Berry said.

Others want military officials to stick to their guns when it comes to vaccine mandates.

Having a high bar for approving exemption requests doesn’t mean the Navy is engaged in discrimination, Schwartzman said.

“Especially in situations where someone is serving in the special forces, the military may well have reasonable justifications for refusing to grant religious exemptions,” he said.

Regardless of how military officials decide to proceed, clashes over COVID-19 vaccine mandates and access to religious exemptions won’t be resolved anytime soon, Schwartzman added.

“I expect vaccines to be major part of (the Supreme Court’s) agenda over the next year,” he said.