With the deployment of a Navy destroyer hanging in the balance, lawyers representing a number of religious objectors to the military’s COVID-19 vaccine mandates returned to federal court Thursday, March 10, to determine whether a Navy commander and a Marine lieutenant colonel should be forced to get the shot or lose their jobs.
In February, Judge Steven Merryday of the US District Court for the Middle District of Florida temporarily forbade the military from enforcing the mandate on the two plaintiffs while the case was being decided. Both officers are part of what aims to become a class-action lawsuit representing around 30 unnamed service members.
The military seems most eager to discipline the Navy commander and has now appealed to the 11th Circuit in hopes the higher court will override Merryday’s order. Forcing the military to maintain the status quo with regard to the commander’s employment has “sidelined a $1.8 billion warship and substantially interfered with the deployment of roughly 300 Marines,” the service wrote in its appeal, filed March 3. The guided missile destroyer the officer commands is unable to leave the docks because the Navy has “lost confidence in his ability to lead.”
The Navy officer, who has served in the military for about 18 years, said he submitted his religious exemption request in September 2021 but was denied, as were all 16 sailors aboard his ship who made similar requests. In court testimony, he described himself as a devout Christian and said he objected to vaccines created from aborted fetal stem cell lines.
But according to the Navy’s appeal to the 11th Circuit, the commander also disregarded service policy and exposed his crew to COVID-19 in December by not testing or quarantining after he began exhibiting symptoms of the virus. The commander was ordered to take a COVID-19 test, and it came back positive, the Navy alleges.
“The Navy has determined that it cannot, in its judgment, leave Navy Commander in his role given these breaches of trust with his commanding officer and with his subordinates,” the lawyers for the defense wrote in their emergency motion with the district court.
The military contends both the commander and the Marine lieutenant colonel disobeyed a lawful order and should be subject to discipline as seen fit by their superiors.
“By ordering that these two Plaintiffs be kept in command (in the case of Navy Commander) or be placed in command (in the case of Lieutenant Colonel 2), the Court improperly took control of the Navy’s and the Marine Corps’ command assignments, stepping beyond its constitutional limits and improperly stepping into the role of those officers entrusted to run the military,” the military argued in its motion.
Merryday has already indicated in previous orders that he believes both officers are “very likely” to prevail in their claim, writing that the needs of the military did not override the religious protections provided to all Americans under the Religious Freedom Restoration Act.
“Thus far, the defendants seem to comprehend, or at least to acknowledge, only half — the ‘lawful order’ half — of the governing legal reality and seem studiously and purposefully to ignore the other half, the religious exemption half, ensured by RFRA,” he wrote in a scathing rebuttal to the government’s claims.
Merryday waved away the government’s concerns about a potential coronavirus outbreak on the destroyer, saying that 99% of the force is vaccinated and “the relatively weak and transient Omicron variant is dominant.” He also described the Navy commander as “triumphantly fit and slim and strong [and] robustly healthy.”
Lawyers from Liberty Counsel representing the plaintiffs presented new testimony to the District Court in Florida Thursday that was not immediately available to the public. The Department of Justice declined to present any witnesses in the evidentiary hearing but is expected to file its next response in the appeals court by Monday.