The government appealed the granting of preliminary injunctions by Judge Reed O’Connor of the Northern District of Texas last January. The injunction prohibits the Department of Defense (DOD) from “taking any adverse action against Plaintiffs on the basis of Plaintiffs’ requests for religious accommodation.”
One of its primary arguments before the Fifth Circuit panel of judges was that the vaccine mandate was officially repealed on January 10 following the passage of the National Defense Authorization Act (NDAA) by Congress, which called for the requirement to be rescinded, and therefore the case is moot.
The government claims that no service member “can be separated or disciplined for failure to comply with the military’s August 2021 vaccination requirement.” Furthermore, the Navy SEALS’ claims for religious exemptions from the vaccination requirement are no longer applicable either.
First Liberty, a religious freedom legal defense fund in Plano, represents the SEALS and other members of the U.S. Navy.
Its argument is that the case is not moot because the DOD’s memorandum rescinding the vaccine mandate does not prohibit the reinstitution of a vaccine mandate and also leaves room for continued discrimination. It states that vaccination status may still be considered “in making deployment, assignment, and other operational decisions.”
First Liberty pointed to Navy Secretary Carlos Del Toro’s remarks in response to the NDAA, “[U]nquestionably it’ll create almost two classes of citizens in our services. Those that can’t deploy and those that can deploy. And that creates all sorts of problems.”
Mike Berry, director of military affairs at First Liberty, noted that if unvaccinated service members are not deployed or allowed to travel or participate in training courses, that has an adverse impact on their military careers.
“The government is failing to appreciate that there are thousands of service members being treated as second class because of their vaccine status and religious beliefs,” Berry told The Texan.
He added that the DOD also eliminated the religious accommodation process, leaving the service members with no means of recourse.
First Liberty argued that the Religious Freedom Restoration Act (RFRA) provides a process to those claiming a religious vaccine exemption. There is no military exemption from abiding by the requirements of RFRA, Berry said.
In a letter brief to the Fifth Circuit, the United States expressed its intent “to seek dismissal of the entire case as moot in the district court.”
Berry is cautiously optimistic that the Fifth Circuit panel will affirm the injunctions issued by the district court protecting the service members.
A decision is likely to come in late spring or early summer.
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Kim Roberts is a regional reporter for the Texan in the DFW metroplex area where she has lived for over twenty years. She has a Juris Doctor from Baylor University Law School and a Bachelor's in government from Angelo State University. In her free time, Kim home schools her daughter and coaches high school extemporaneous speaking and apologetics. She has been happily married to her husband for 23 years, has three wonderful children, and two dogs.