A US district judge appears to have noticed what advocates for religious accommodation have been saying for weeks: Since the military has shown a willingness to grant medical exemptions to the COVID-19 vaccine mandate, why have only three religious exemptions been granted out of more than 10,000 applications?
“One struggles to imagine a wholesome and lawful explanation for the results evidenced in this record,” Judge Steven Merryday of the US District Court for the Middle District of Florida wrote in an order filed Wednesday, Feb. 2. “The military is well aware of the frailty of their arguments in defense of their practices.”
In his order, Merryday noted the vast gulf between medical exemptions approved by the military and the military’s near-total rejection of religious exemption applications. The numbers presented to the judge at the time of his ruling were that the Navy had granted 270 medical exemptions and zero religious exemptions, while the Marines had granted 234 medical exemptions and allowed three religious exemptions.
Both the Army and Air Force have also publicly said they have not granted any religious exemptions.
Merryday’s strong words came as part of a decision in an ongoing suit in which two military plaintiffs have sued for religious accommodations. Merryday granted a week of injunctive relief to the two plaintiffs and indicated that the service members were “very likely” to prevail in their claim.
Lawyers for the plaintiffs said they hoped to expand the case beyond their clients into a class-action suit that could apply to all military members.
The plaintiffs in the case are a Navy commander of a guided-missile destroyer who has 17 years of service and a Marine lieutenant colonel who serves as a diversity and inclusion officer and conducts research on integrating women into ground combat positions. They are represented by Liberty Counsel, a law firm that focuses on religious liberty cases, and both defendants filed for religious exemptions from the mandate based on their objections to vaccines created from aborted fetal stem cell lines.
The military, wrote Merryday, “is most likely unable to establish, and certainly has not established, that permitting the relatively small number of [requested religious exemptions] … will adversely affect the public’s interest in the maintenance and readiness of the nation’s military forces.
Merryday’s scathing decision references another lawsuit, filed in Texas, which also put a temporary halt on mandate-related discipline against 35 sailors, including multiple Navy SEALs, in January. But while each of these lawsuits has benefited only the plaintiffs in each specific case, a Liberty Counsel press release indicates the organization will ask Thursday for the injunction to be widened to other currently pending lawsuits. The firm will also seek to establish the case as a class-action suit that would include “all military service members, federal employees, and federal civilian contractor plaintiffs,” according to the press release.
Liberty Counsel founder and chairman Mat Staver said the judge had called out the Pentagon’s foot-dragging on religious exemptions.
“The military faces a trivial, if any, prospect of material injury as a result of permitting the service members continued service under the same terms and conditions and with the same privileges and emoluments as currently prevail, especially because the military permits a large group of unvaccinated persons to serve without adverse consequence,” Merryday wrote, referring to those with medical exemptions.
The Army began Wednesday to separate soldiers who refused the vaccine, following the lead of the Air Force, Marines, and Navy, which began discharging unvaccinated service members in the weeks following their vaccine mandate deadlines in late 2021.