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Vaccine Mandates in the Military: Litigation Over Religious Exemptions

By Kaitlynn Milvert

In August 2021, the U.S. Department of Defense (DoD) put in place requirements for service members to receive the COVID-19 vaccine. Litigation has since ensued over the military branches’ restrictive approach to religious exemptions to vaccination.

On March 25, the U.S. Supreme Court weighed into one such case: the Court granted the government’s request for a partial stay to allow the Navy to continue to use vaccination status in making deployment and assignment decisions while the litigation proceeds.

The Lawsuit

The Navy lawsuit is one of several ongoing legal challenges to the military branches’ policies on religious exemptions to the DoD COVID-19 vaccine mandate. Similar suits have been brought throughout the country by service members across the military branches.

The case was brought by 35 Navy service members who have sought religious exemptions to the COVID-19 vaccine requirement. The suit argues that the Navy’s failure to grant them religious exemptions violates their rights under the Religious Freedom Restoration Act (RFRA).

The RFRA claims contend that, in failing to grant the religious accommodation requests, the government has not pursued the least restrictive means of furthering the government’s interests in preventing COVID-19 infections among service members and carrying out military operations.

To date, the military branches have granted very few religious exemptions to the COVID-19 vaccination requirements — in line with their longstanding policies requiring that service members receive a host of mandatory vaccines. The Navy, so far, has granted only one religious exemption to its COVID-19 vaccine mandate.

In January 2022, the federal district court for the Northern District of Texas granted a preliminary injunction to prevent the Navy from enforcing the vaccination requirements and taking “any adverse action” against the 35 service members named in the suit.

The federal government subsequently asked the Fifth Circuit Court of Appeals to put the injunction on hold. However, the Fifth Circuit affirmed the lower court’s ruling, leading the government to seek a stay from the U.S. Supreme Court.

The Supreme Court Stay

Following the government’s request, the Supreme Court granted a partial stay. The stay allows the Navy to continue to use vaccination status in making decisions about assignment and deployment while the litigation continues.

The Supreme Court’s order was issued without a majority opinion. But it came along with a concurrence from Justice Kavanaugh and a dissent from Justices Alito and Gorsuch. Justice Thomas also opposed the stay, but did not author a separate opinion.

Justice Kavanaugh’s concurrence stressed that the military — not courts — should have decision-making authority over personnel decisions, including those connected with the vaccine mandate. The concurrence expressed concern that the district court had “in effect inserted itself into the Navy’s chain of command, overriding military commanders’ professional military judgments.”

Justice Alito’s dissent, joined by Justice Gorsuch, instead characterized the issue as forcing service members “to choose between violating their religious beliefs and the punishment that the Navy threatened.” The dissent asserted that, in putting the lower court’s injunction on hold, “the Court brushes aside respondents’ First Amendment and RFRA rights.”

These divergent opinions put on display the different ideological fractures that come together in the context of religious exemptions to military vaccine mandates, pitting judicial deference to military decision-making on matters of public health within their ranks against courts’ reluctance to scrutinize individual expressed religious beliefs.

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