The Supreme Court handed a second straight defeat to a military member seeking relief from the Pentagon’s COVID-19 vaccine mandate, turning away an appeal by an Air Force Reserve lieutenant colonel who, when ordered to get vaccinated, sent a memo to his commander that said: “NUTS!”
Lt. Col. Jonathan Dunn’s one-word memo got him fired from his command, but his argument to the high court attempted to turn the tables on the idea of a religious exemption, arguing that the vaccine mandate itself had grown into “a religious ritual required as a condition of participating fully in civil society.”
A string of lower court rulings have given some hope to many service members who have filed lawsuits after seeking exemptions from the military’s COVID-19 vaccine mandate, but Monday’s 6-3 ruling by the Supreme Court will likely dampen hopes that most of those cases will prevail at the highest court in the land.
The April 18 ruling followed Dunn’s lawsuit in the District Court for the Eastern District of California, asking for relief from punitive action due to his refusal to get the vaccine on religious grounds. When his request for a temporary injunction was denied, he appealed to the 9th Circuit Court of Appeals, which also denied his request.
The Supreme Court denied his final request Monday. Justices Thomas, Alito, and Gorsuch wrote that they would have granted the injunction.
Last month, the Supreme Court refused an appeal from a group of Navy SEALs who objected to the vaccine on religious grounds, with the same justices dissenting. In that appeal, Austin v. US Navy SEALS 1-26, Justice Brett Kavanaugh wrote, “The District Court, while no doubt well-intentioned, in effect inserted itself into the Navy’s chain of command, overriding military commanders’ professional military judgments. […] The president of the United States, not any federal judge, is the Commander in Chief of the Armed Forces.”
Dunn, who until being relieved from command led the 452nd Contingency Response Squadron of the Air Force Reserve, has served in the Air Force for 18 years. Similarly to other cases protesting the COVID-19 vaccine mandate, Dunn maintained that the denial of accommodation based on his “sincerely held religious belief” was a violation of his rights under the Religious Freedom Restoration Act.
In addition, Dunn attested that he had already contracted the COVID-19 virus, most likely the Delta variant, and testing has shown that he retained antibodies against the vaccine. Therefore, Dunn argued, allowing him to serve would not put his squadron at risk or undermine the unit’s readiness.
“Because government leaders have described the vaccine as a moral obligation and have relegated the unvaccinated to lower social status with reduced civil rights, he believes this particular vaccine has taken on a ‘symbolic’ and ‘sacramental quality,’” his attorneys said in the application. “That makes COVID-19 vaccination a religious ritual required as a condition of participating fully in civil society—like ancient Roman laws requiring sacrifices to Caesar or Nebuchadnezzar’s ‘edict requiring worship of the golden statue.’”
Upon being told by his commanding officer, Col. Gregory Haynes, that his request for religious accommodation had been denied, and he had five days to decide between receiving the vaccine, submitting a retirement request that would be denied due to his ineligibility, or officially refusing the vaccine in writing, Dunn sent the major general higher up his chain of command a one-word memorandum: “NUTS!”
While the “NUTS!” response was a reference to Brig. Gen. Anthony McAuliffe’s response to a demand that the 101st Airborne surrender at the Battle of the Bulge, Haynes took it as a sign of disrespect and removed Dunn from command, due to Dunn’s “conduct and lack of judgment following the denial of his religious accommodation request appeal.”
At least three other military vaccination cases may soon be at the Supreme Court, including Doe v. Austin, Lembo v. Del Toro, and Navy SEAL 1 v. Biden, all of which allege that the government is illegitimately restricting the religious freedom rights of service members by not fairly adjudicating religious accommodation requests.
In the case of Navy SEAL 1 v. Biden, the lower court has been supportive of the service members’ case, with Judge Steven Merryday of the District Court for the Middle District of Florida saying that the plaintiffs are “very likely” to prevail in their claim.
“The military is well aware of the frailty of their arguments in defense of their practices,” wrote Merryday in his order approving a temporary injunction against punitive actions for two of the plaintiffs in the case.
Vaccine Exemptions, Separations
The Army has approved two religious exemptions out of 4,238 requests. The service has separated 255 soldiers from the branch so far.
The Navy received 3,352 active duty and 852 Individual Ready Reserve (IRR) requests for religious accommodation. It has granted 10 conditional approvals to IRR sailors, but they must be vaccinated prior to returning to active duty. It has also given 27 approvals to sailors who will be transitioning out of the Navy prior to June 1. There have been 804 separations for refusing the vaccine.
The Air Force has granted 37 approvals out of 7,784 requests for religious accommodation and has separated 261 active-duty airmen.
The Marine Corps, which shares its numbers to the press via email, has approved seven exemptions out of 3,697 requests. And 1,787 Marines have been separated due to vaccine refusal, according to Media Operations Officer Capt. Ryan Bruce.