Supreme Court gives partial OK to Navy for vaccine mandate

• By Nina Totenberg/NPR

(Washington) — The U.S. Supreme Court late Friday reinstated the Biden administration’s program mandating that members of the military be vaccinated against COVID-19 or face reassignment.

The vote was 6-to-3 to partially overturn a decision by the Fifth Circuit Court of Appeals, which had blocked a Department of Defense vaccine mandate for military personnel. The lower court sided with a group of Navy SEALs who contended that religious exemptions included in the DoD directive were too restricted. Friday’s decision mainly reversed that decision. At the request of the Biden administration, the court agreed to preserve the Navy’s ability to reassign Navy seals and other military personnel who refuse to be vaccinated.

The court’s unsigned order was just one paragraph long. But in a concurring opinion Justice Brett Kavanaugh said, “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.”

Dissenting were Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch. “By Rubberstamping the Government’s request…the court does a great injustice ” to the servicemen and women who brought this case, Alito wrote on behalf of himself and Gorsuch. They said the Navy had treated the SEALs “shabbily” by not giving more expansive protections to those who claimed religious objections to the vaccine mandate.

Because the case came to the court on the so-called “shadow docket” as an emergency appeal, the SEALs who challenged the vaccine requirement could ask the justices to weigh in again, at a later stage of the case, but Friday’s action decreases their odds of success.

Mandatory military vaccinations have a rich history, dating back to 1777 when George Washington ordered that the Continental Army be inoculated against smallpox. The military currently requires servicemembers to get get nine other vaccines, none of which have been controversial.

The case was brought by 35 servicemembers, including 26 SEALs, who challenged the military’s COVID-19 vaccine mandate, issued in August 2021 after the FDA granted full approval to multiple vaccines. Judge Reed O’Connor, a federal judge in Texas, blocked the Navy from discharging the unvaccinated servicemembers and forbade the military from taking any adverse action against them, including reclassifying them as unfit for deployment.

The Fifth Circuit Court of Appeals, based in Louisiana, upheld O’Connor’s order and refused to grant the government’s request for a temporary stay pending appeal. Now the Supreme Court has sided with the Biden administration. The victory, however, was somewhat limited.

The Defense Department asked the high court to reverse only the part of the lower court order that blocked the Navy from reassigning unvaccinated servicemembers. In short, for now, the Defense Department can reassign those who refuse to be vaccinated on religious grounds, but it can’t fire them. Still, it may ultimately be able to deny religious exemptions to many of those seeking them. Moreover, in practical terms, even temporary reassignment may make continuing in the service very unattractive for objectors.

The Navy SEALs argue that getting the COVID-19 vaccine violates their faith and they claim that the Navy’s process for evaluating religious exemptions is a sham, violating the Religious Freedom Restoration Act. They contend that the law requires the Navy to take a case-by-case approach, considering each religious accommodation based on the specifics of the servicemember’s role. Instead, they say that the Navy issues generic, near-automatic denials to each applicant.

To date, the Navy has only granted a single religious exemption to its COVID-19 vaccine mandate, out of 4,000 applications, and that servicemember was not on active duty. Presumably, the same personnel who are claiming religious exemptions for the Covid-19 vaccine have not objected to the Defense Department’s other vaccination requirements.

More importantly the Defense Department argued that under both the Constitution and federal statutes it has the authority to determine what it means to be physically and medically fit to be deployed in “the military’s most sensitive and dangerous missions.”

The administration argued that Judge O’Connor’s order imperiled military readiness, requiring the Navy, for instance, to deploy one unvaccinated SEAL for duty on a close-quartered submarine.

In a related case in Florida, the Navy has refused to deploy a warship after a federal judge blocked the Navy from reassigning the ship’s unvaccinated commanding officer.

It would be “a dereliction of duty” to allow unvaccinated servicemembers to endanger the lives of their peers, said Vice Chief of Naval Operations Admiral William K. Lescher in a sworn affidavit cited in the government’s appeal. A mission could be compromised if even one member of a small SEAL team is ill with COVID-19, he continued.