WASHINGTON (CN) — The Supreme Court sided with the Defense Department on Friday afternoon, blocking a lower court ruling that would force the military to deploy unvaccinated Navy SEALs fighting a Covid-19 vaccine mandate.
There was no majority opinion on the ruling but Justice Brett Kavanaugh wrote a concurring opinion. Justices Clarence Thomas, Neil Gorsuch and Samuel Alito dissented.
“Under Article II of the Constitution, the President of the United States, not any federal judge, is the Commander in Chief of the Armed Forces,” Kavanaugh wrote in his concurring opinion. “In light of that bedrock constitutional principle, ‘courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs.’”
Secretary of Defense Lloyd Austin asked the high court for a partial stay of the district court's injunction earlier this month.
Thirty-five servicemembers within the Naval Special Warfare community — which conducts missions including special reconnaissance, counterterrorism, counterinsurgency and hostage rescue — are seeking religious exemptions from the military’s Covid-19 vaccine requirement. So far the Navy has only granted one religious accommodation despite receiving over 4,000 requests. While each accommodation request is pending, the Defense Department wants to prevent their deployment — which the SEALs view as a punishment.
The SEALs were granted an injunction in January by a federal judge and the Fifth Circuit refused to block it after the government appealed.
Austin told the high court that the lower court’s ruling was “an extraordinary and unprecedented intrusion into military decisionmaking.”
“Admiral William K. Lescher, the Navy’s second-highest ranking uniformed officer, has attested that it will cause ‘immediate harm to the Navy’ and ‘to the national security of the United States’ by mandating what he regards as a ‘dereliction of duty,’” Solicitor General Elizabeth Prelogar wrote in the government’s brief.
The government reminded the justices that the U.S. military has mandated vaccines since its inception.
“The U.S. military has relied on mandatory immunization since 1777, when George Washington directed the inoculation of the Continental Army against smallpox,” Prelogar wrote.
The SEALs claim the injunction does not require the Navy to deploy any of the servicemembers with pending religious accommodation applications. They say all the injunction does it maintain the status quo.
“The injunction merely preserves the status quo while this case is litigated,” Heather Gebelin Hacker, an attorney with Hacker Stephens representing the SEALs, said in the servicemembers’ brief. “Far from supplanting military judgment, the injunction retains the judgments the Navy already made in terms of plaintiffs’ jobs, pay, and training. The only things that changed those judgments were plaintiffs’ requests for accommodation of their sincere religious beliefs against COVID-19 vaccination.” (Emphasis in original.)
The government said this argument is an attempt to avoid defending the injunction.
“That contradicts respondents’ prior representations, the contempt motion they have already filed in district court, and the decisions below,” Prelogar wrote. “It also confirms that a partial stay is warranted: Contrary to respondents’ assertions, the Navy does not seek to retaliate against or discipline respondents for requesting religious accommodations, and granting the partial stay would not allow it to do so.”
Kavanaugh’s concurring opinion said he saw no reason for the courts to use their power in a way that would disrupt military affairs.
“I see no basis in this case for employing the judicial power in a manner that military commanders believe would impair the military of the United States as it defends the American people,” Kavanaugh said.
In a dissenting opinion joined by Gorsuch, Alito said the court’s ruling did a “great injustice” to the servicemembers challenging the vaccine mandate and accused the Navy of treating the SEALs “shabbily.”
Alito said that while the Navy has a compelling interest in preventing Covid-19 infections, he claims it did not even try to consider the servicemember’s religious exemptions.
“All the evidence available at this stage suggests that the Navy gave no real consideration to respondents’ requests, and the Navy had no compelling need to proceed in that fashion,” Alito wrote.
Claiming the Navy treated service members who applied for medical exemptions more favorably than religious exemptions, Alito said he would specify the court’s order provide equal treatment for all unvaccinated service members.
He cited the court’s ruling from Ramirez v. Collier — handed down only a day previously — to argue the SEALs' First Amendment and Religious Freedom Restoration Act rights were being violated.
”The contrast between our decision in Ramirez yesterday and the Court’s treatment of respondents today is striking,” Alito said. “We properly went to some lengths to protect Ramirez’s rights because that is what the law demands. We should do no less for respondents.”
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