The Military and Vaccine Mandates: Let the Religious Freedom Restoration Act Work

POLITICS & POLICY
A U.S. Navy officer from the amphibious ship USS San Diego (LPD 22) receives a vaccine at the navy port in Manama, Bahrain, on February 26. This image was released by the U.S. Navy on February 27, 2021. (Brandon Woods/U.S. Navy/Handout via Reuters)

It has been said that the only law that works is the law of unintended consequences. The Navy is certain to reinforce that impression if it gets its way in the emergency proceeding it filed last week at the U.S. Supreme Court.

For decades, government lawyers have claimed that respecting religious liberty in the military will cause the sky to fall. In their most recent filing, they’re back at it, asking for a blanket exemption from the Religious Freedom Restoration Act on national-security grounds. But the truth is that courts have extensive experience applying RFRA to the military in ways that have permitted hundreds of religious minorities and other believers to serve their country without having to abandon their religious beliefs — all without compromising the military’s weighty national-security interests. That is just what Congress intended. Rather than jumping in to change the standard set by Congress — which could upend decades of progress in protecting service members’ religious freedom — the Court should follow the proven track and let RFRA balancing do its work, as is already happening in the district court.

In last week’s emergency filing, the solicitor general asked the Supreme Court to parachute into a dispute over the Navy’s Covid-vaccine mandate. In United States Navy SEALS 1-26 v. Austin, members of the Navy’s special-ops team sought protection from the mandate because of their religious objections to the vaccine. A federal district court issued a preliminary injunction barring the Navy from discharging the plaintiffs or from taking adverse action against them because of their objection. Three judges on the Fifth Circuit unanimously affirmed, noting that the Navy already allows medical exemptions to the same mandate. Now the Navy wants the Supreme Court to step in.

The Navy wisely is not asking the Court to overrule the full injunction. But the relief it seeks is not much narrower. It seeks unfettered discretion in making all deployment decisions of every kind — emergency or not, short-notice or not, dangerous circumstances or not — without having to meet RFRA’s standard. The Constitution, however, gives Congressthe power to “make rules” governing “the land and naval Forces,” and Congress has directed the Navy to respect sailors’ religious liberty absent a compelling interest that can’t be met any other way. Rather than consider the plaintiffs’ religious objections under that standard, the Navy claims that applying the congressionally imposed RFRA standard to military assignments can never be appropriate, because it could interfere with national security.

RFRA and the Military

The solicitor general’s argument misunderstands RFRA. The law allows important national-security interests to trump religious liberty in certain circumstances, namely where the government can show a true compelling interest that cannot be met another way. But the government needs to offer proof in the trial court about particular cases and circumstances, rather than claiming that all decisions are always exempt. Adopting the Navy’s theory would blow a military-sized hole through RFRA. All four branches of the military could assert national security as a justification for any of their decisions. And they frequently do — in ways adverse to religious liberty. In 1997, for example, the Navy issued a letter forbidding military chaplains from supporting the Partial Birth Abortion Ban Act over the pulpit. It argued that permitting chaplains to speak on the issue could “severely undermine military discipline, cohesion, and readiness to the detriment of the National Security.” Rigdon v. Perry, 962 F. Supp. 150, 161-62 (D.D.C. 1997). The Army repeated the same error in 2012, when it told Catholic chaplains to disobey their archbishop’s directive to read from the pulpit a pastoral letter about the church’s position on the federal contraception mandate. The Army backed down only when reminded about RFRA. And just over a year ago, the Navy banned sailors from attending off-base houses of worship, arguing this was “essential” to “ensuring the Navy’s operational readiness.” But just two weeks later, after members of Congress pointed to RFRA, the Navy issued a “clarification” that beat a hasty retreat.

Rather than give the Navy a free pass, the Court should look to these and other historical applications to see how RFRA has worked in the military context. As in prisons, this prior experience shows that RFRA works as Congress anticipated — significantly protecting service members’ religious exercise without hindering the government’s weighty institutional interests.

The experiences of service members with religious beards are particularly instructive. Consider Edmund Di Liscia, a Hasidic Jew serving in the Navy. After he received a temporary accommodation for his religious beard, he deployed in 2021 on an aircraft carrier to the South China Sea at a time of heightened tension with China. While there, the Navy denied his request for a permanent accommodation on grounds it would “present an unacceptable risk to the Navy’s compelling interest in mission accomplishment.” He was ordered by his commander to shave within 24 hours or be bound and shaved by his atheist bunkmate. But after we raced overnight to file an RFRA complaint on his behalf and the D.C. federal district court temporarily prevented the forced shaving, the Navy backed down — perhaps because it quickly came to light that the ship’s captain, to boost morale, had granted a ship-wide shaving reprieve for the course of the deployment, allowing all sailors to regularly skip shaving for weeks at a time.

Although Di Liscia’s lawsuit is still pending, RFRA claims by other service members show how RFRA can protect religious liberty while appropriately respecting military interests. In 2014, the ACLU represented Sikh-American Iknoor Singh in an RFRA challenge to the Army’s barring him from the ROTC because of his articles of faith, including his turban, unshorn hair, and beard. Singh v. McHugh, 109 F. Supp. 3d 72 (D.D.C. 2015), amended at 185 F. Supp. 3d 201 (D.D.C. 2016). Like the Navy is now, the Army claimed that compelling interests in military readiness justified the ban. But after the court permitted extensive discovery into the Army’s alleged interest, the claim fell flat. There, the evidence revealed that the Army “tolerate[d] so many idiosyncratic deviations from its grooming regulations” that it could not credibly contend a religious beard exemption would hinder its ability “to perform effectively.” 185 F. Supp. at 226 (cleaned up). In fact, the Army had granted over 100,000 beard exemptions for medical reasons. Id. at 207-08.

The court in that case also relied heavily on investigations into three observant Sikhs who had been accommodated in 2013 for their unique language skills and medical training, which the Army needed at the time. The court found that each of these soldiers had “earned commendations and outstanding reviews,” without “any of the negative consequences that [the Army] predicted would flow from granting a similar exception” to the ROTC candidate. Id. at 229. Although the court acknowledged “the doctrine that cautions judges to afford substantial deference to the judgment of military commanders” in certain matters, id. at 204, that discretion was subject to the “congressional determination — enshrined in RFRA — to tip the scale in favor of individual religions rights.” Id.

A later lawsuit by Captain Simratpal Singh ultimately led the Army to change its policy to accommodate Sikhs and other religious minorities with unique religious requirements. Captain Singh was a graduate of West Point and Ranger School, earned the Bronze Star medal for his service in Afghanistan, and earned a master’s degree in engineering management. It was around that time that he attended a Vaisakhi celebration at the Pentagon and met the three Sikhs accommodated for their language and medical skills. Inspired to return to fully observing his faith, which required him to maintain a full beard, he brought an RFRA claim that ultimately led to the Army’s adopting a new accommodation policy.

The Army’s admirable policy is an excellent example of how RFRA protects religious exercise while respecting national security and other similar concerns. The policy recognizes that, in the vast majority of situations, a beard poses no threat to military interests. Thus, it restricts religious beards in only rare situations, such as where there is an actual threat of exposure to dangerous biological, chemical, or nuclear agents. And even then, the policy permits appeal at an appropriate time, which would allow the soldier to show that there is no real threat or that there are other means to provide adequate protection.

RFRA’s Application Here

That’s a far cry from the blank check that the Navy is trying to get the Supreme Court to write here. To be sure, on close calls, courts often defer to military decisions. But that deference comes within the RFRA balancing test and is no justification to simply throw out RFRA’s analysis altogether. When Arkansas prisons pushed this “unquestioning deference” approach not long ago, they rightly lost 9-0 at the Supreme Court. And the Army’s experience with beards shows that such broad deference isn’t necessary: RFRA can protect the religious rights of America’s service members without interfering with the military’s compelling interests. Indeed, after just a few years with the new Army policy, there are believed to be more than 100 Sikhs now honorably serving throughout the military with their articles of faith in place.

As with the Army and beards, there is no reason the Navy could not develop policies for addressing religious objections to vaccines that recognize the broad range of roles where being unvaccinated would pose no risk to military readiness or mission, while still reserving discretion for emergency situations. Certainly the risk would inarguably be less for Navy SEALs assigned to the more common training, logistics, and other such roles.

Indeed, the Navy already has a system in place for making case-by-case determinations through its accommodation request process. But rather than applying RFRA as its own policy requires it to do, it denied literally every request for a religious accommodation request, even while the military overall has granted thousands of nonreligious exemptions. It is no surprise then that lower courts faced with the resulting lawsuits have consistently characterized the Navy’s accommodation process as “illusory and insincere” and mere “theater.” Before blowing up RFRA in the military context, the Court should first require the Navy to give it a try.

RFRA is not a “religion always wins” rule. It simply requires that government — before suppressing religion — think carefully through the options. If there is a way to avoid crushing the sincere religious beliefs of our men and women in uniform, then those beliefs must be accommodated. But in truly compelling circumstances, and where really necessary, the government will prevail.

Rather than letting the Navy bypass that process, the Court should allow the district court to review the specific risks of Covid-19 for individuals of the age, health, and fitness of Navy SEALs, the unique circumstances that arise in special operations, how the Navy historically has responded to other contagious diseases with a similar risk profile, and how these factors would apply to the work of the individual plaintiffs. The Navy can of course offer evidence as to situations in which an unvaccinated SEAL would pose a heightened risk. But simply asserting that every deployment decision is always a compelling interest will not do. Moreover, embracing that position would undermine RFRA’s application in all other military contexts, including in protecting the right of religious minorities to serve without having to abandon their faith. In short, the Court should simply let RFRA work and allow the government to make its arguments as to particular cases in the district court.

Eric Baxter is senior counsel and vice president of the Becket Fund for Religious Liberty. Daniel Blomberg is senior counsel at the Becket Fund for Religious Liberty.

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