Military Mandate Case

Military Mandate Case

Re: the Legality by the DoD to force Covid Injections unto Military Personal who Object on Religious Grounds

Facts of the Case

Date Filed: Oct. 15, 2021
Location: Florida, USA
Court: US District Court, Middle District of Florida
Case #: 8:21-cv-2429-SDM-TGW
Plaintiffs: Navy Seal 1, et al
Plaintiff’s Lawyer: Liberty Counsel

Defendant: Lloyd Austin, DoD secretary
Trial Type: Human Rights
Judge: Steven Merryday
Status: Ongoing
Verdict: TBD

*updated Apr 27, 2022

Background

Liberty Counsel on Friday (Oct 15, 2021) announced a class action lawsuit on behalf of members of all five branches of the U.S. military – the Army, Navy, Air Force, Marines and Coast Guard – against President Joe Biden over his orders they take the experimental COVID shots or face dishonorable discharge. [1]

“The Biden administration has no authority to require the COVID shots for the military or for federal employees or civilian contractors,” explained Mat Staver, Liberty Counsel chairman. [1]
“Nor can the Biden administration pretend that the federal Religious Freedom Restoration Act and the First Amendment do not apply to its unlawful mandates. The commander-in-chief must end this shameful treatment and abuse of our brave military heroes. Forcing the COVID shots without consent or consideration for their sincere religious beliefs is illegal.” [1]

It seeks a temporary restraining order preventing Biden and his appointees from “enforcing, threatening to enforce, attempting to enforce, or otherwise requiring compliance with the Federal COVID-19 Vaccine Mandate…” [1]

Other defendants are Secretary of Defense Lloyd Austin and Secretary of Homeland Security Alejandro Mayorkas. [1]

Liberty Counsel said the non-military plaintiffs include a Department of Defense contractor who has conducted Intelligence, Surveillance, and Reconnaissance quantitative and qualitative assessments and studies, whose assessments are briefed to DOD senior leadership to inform decisions on future employment, allocation, and procurement; a federal civilian engineer employed by a large military defense contractor that provides LCD screens used in United States Armed Forces aircraft; a federal civilian contractor employer whose company develops and supports military weapons systems, including current and next generation land vehicles for the Army and next generation Navy vessels; a federal nuclear contractor employee who is a young woman opposed to abortion and who desires to have children of her own one day; and a Department of Energy Civilian Nuclear Tech who works at the Los Alamos National Laboratory. [1]

Liberty Counsel has been providing legal assistance to more than 700 service members from the Army, Air Force, Space Force, Navy, Marine Corps and Coast Guard. Liberty Counsel maintains an internal “Service Member Final Denial List” for service members who have contacted Liberty Counsel and whose final Religious Accommodation Request appeals have been denied. Based on this list alone, the U.S. military will continue to lose highly qualified and experienced personnel. [3]

Liberty Counsel Founder and Chairman Mat Staver said, “Liberty Counsel represents plaintiffs from all branches of the military who were denied religious exemptions from the COVID shot mandate. The military has violated the Constitution and the federal Religious Freedom Restoration Act with this unlawful COVID shot mandate. The abuse of military heroes is inhumane and unlawful. The Department of Defense acts likes it is above the law. This abuse and unlawful action must end.” [3]

The Plaintiffs:

The action in U.S. District Court in Florida is on behalf of two Navy SEALs, a Navy EOD Officer, a Navy Senior Chief Petty Officer, a Navy Chaplain, two Marine Lt. Colonels, two Marine Lance Corporals, an Air Force Major, an Air Force Technical Sergeant, an Army National Guardsman, an Army Colonel, and a Coast Guard Lieutenant. [1] As of March, 30 plaintiffs are listed [4]

The individuals for whom the case was filed are not named, but in a sworn statement on Navy chaplain explained,

“I personally observed (and the Sailors told me in the course of counseling about) tremendous amounts of coercion, bullying, censorship, and intimidation being brought forth by the command to bear against the personnel who expressed objections of any kind to the COVID shot mandates, including religious objections…And clearly, the military has lost more lives to the increase in suicide from 2020-2021 (at least 1,012) than to all of COVID in 2 years (~52), but suicide has not been a focus.” [1]

One plaintiff is a U.S. Marine Corps Lieutenant Colonel who faced immediate and irreparable harm beginning today. Her appeal for religious exemption was denied. Today she was to be added to the Officer Disciplinary Notebook, and her command selection withdrawn, irreparably damaging her career. This event would have begun the process of her ultimate discharge from the Marine Corps. [5]
Another plaintiff, a U.S. Navy Command Surface Warfare Officer, faced immediate discipline on February 3, at which time he would have been removed from command of his ship, irreparably damaging his career because he was denied a religious exemption from the COVID shot. [5]
Also under Navy SEAL 1 v. Austin, Liberty Counsel is representing a cadet at the U.S. Air Force Academy who is seeking legal relief after the Colorado Springs-based school ordered him to choose either the COVID-19 vaccination or “voluntary” resignation from the Academy. [6]

The unnamed cadet, according to Liberty Counsel, believes that God has called him to serve in the Air Force – but also holds a sincerely held religious belief that he shouldn’t receive any of the COVID shots because of their connections to abortion. [6]

Gordon Klingenschmitt is a former Navy chaplain who attended the Air Force Academy and runs the Pray In Jesus Name project. He tells AFN

“Cadet X” isn’t the only military cadet taking a stand against the mandate. “I’m told now 16 cadets at West Point and an equal number at the Air Force Academy are in danger of being separated because of their religious views,” he concludes. [6]

How this case is different from the Supreme Court Ruling

On Friday, the U.S. Supreme Court granted a partial stay, that focused solely on deployment, in the case of Navy SEALS 1-26 v. Austin. Although the names of the cases can be confusing, Liberty Counsel does not represent the case on which the Supreme Court ruled last Friday but does represent about 30 plaintiffs from all military branches seeking class certification in Navy SEAL 1 v. Austin. [7]

In its order last Friday, the Supreme Court issued a partial stay of the preliminary injunction in Navy SEALS 1-26 only “insofar as it precludes the Navy from considering respondents’ vaccination status in making deployment, assignment, and other operational decisions.” [7]

In contrast, the preliminary injunction in Liberty Counsel’s case, Navy SEAL 1 v. Austin, enjoins the Department of Defense (DOD) and the respective military branches “(1) from enforcing against Navy Commander and Lieutenant Colonel 2 any order or regulation requiring COVID-19 vaccination and (2) from any adverse or retaliatory action against Navy Commander and Lieutenant Colonel 2 as a result of, arising from, or in conjunction with Navy Commander’s or Lieutenant Colonel 2’s requesting a religious exemption, appealing the denial of a request for a religious exemption, requesting reconsideration of the denial of a religious exemption, or pursuing this action or any other action for relief under RFRA or the First Amendment.” [7]

As Judge Merryday noted, “[t]he operative language of the preliminary injunction is direct and specific,” and “narrowly and specifically protects Navy Commander and Lieutenant Colonel 2 (1) from enforcement of an order to either accept vaccination or undergo discipline, including possible separation from service, and (2) from any adverse action that is retaliatory.” Indeed, “[a]ny interpretation to the contrary is wrong.” The defendants “remain at liberty to issue commands, assignments, orders, and the like in the normal course of business.” The “injunction remains indifferent to that non-retaliatory exercise of command authority.” [7]

This preliminary injunction is more narrow than the Texas preliminary injunction which the Supreme Court considered, as it limits defendants from enforcement of an order to either accept vaccination or undergo discipline (which was not challenged before the Supreme Court or in Liberty Counsel’s case before the Court of Appeals), and from taking retaliatory action on the basis of a RFRA claim. [7]

Significance

This is an important case that challenges the Rights of the Individual over the Power of the State

Plaintiff’s Argument

The plaintiffs all hold sincere religious beliefs against the COVID shots on the basis that their body is the temple of the Holy Spirit and to defile it is a sin against God. In addition, the plaintiffs do not want to participate directly or indirectly or otherwise be associated with the destruction of human life through abortion by injecting a product that contains or was tested or developed with aborted fetal cell lines. The plaintiffs have all submitted religious exemption requests from a COVID-19 injection which have been unlawfully denied. [8]

The COVID shots cannot be mandatory under the federal Emergency Use Authorization law, and the plaintiffs’ free exercise of religion is protected by the First Amendment. In addition, their free exercise of religion is protected under the federal Religious Freedom Restoration Act of 1993 (RFRA). Regarding RFRA, the Supreme Court wrote,[8]

“That statute prohibits the federal government from substantially burdening a person’s exercise of religion unless it demonstrates that doing so both furthers a compelling governmental interest and represents the least restrictive means of furthering that interest. Because RFRA operates as a kind of super statute, displacing the normal operation of other federal laws, it might supersede Title VII’s commands in appropriate cases” (emphasis added). [8]

Defendant’s Argument

…More information is needed…

The Proceedings

(see here for a detailed accounting of the proceedings)

Over the course of several months, the presiding Federal Judge Steven Merryday granted several stays to get vaccinated to the service members. The Judge was also sympathetic to the arguments of the plaintiffs and critical of the DoD’s reasoning. The judge also granted anonymity to 2 plaintiffs [4]

While setting a hearing for February 10, Judge Merryday stated he searches in vain for any justification for the military’s refusal to grant accommodations. He says the DOD is “most unlikely” to meet its burden, and forecasts that he will rule against the government. Judge Merryday wrote, in part: [5]

“The record in this action establishes that the two service members are very likely to prevail on their claim that their respective branch of the military has wrongfully denied a religious exemption from COVID-19 vaccination. The record creates a strong inference that the services are discriminatorily and systematically denying religious exemptions without a meaningful and fair hearing and without the showing required under RFRA (while simultaneously granting medical exemptions and permitting unvaccinated persons to continue in service without adverse consequence). One struggles to imagine a wholesome and lawful explanation for the results evidenced in this record. The military is well aware of the frailty of their arguments in defense of their practices. Those arguments both procedural and substantive, are rejected in an action that is distinctively parallel to this action. U.S. Navy Seals 1–26, et al v. Biden, 4:21-cv-1236-O, Doc. 66, 2022 WL 34443 (N.D. Tex. Jan. 3, 2022) (characterizing the military’s review of requests for a religious exemption as “theater” and granting relief to the service member plaintiffs). Rejection on the same or a more encompassing basis is likely in this action (especially if the conduct of the military continues along the present lines).”

Judge Merryday’s order continues: [5]

“The two moving service members face either (1) a most-likely-unlawful deprivation of their accumulated status and standing in the United States military, as well as prospective advancement and benefits, or (2) deprivation of their constitutional and statutory rights to Free Exercise and the statutory right to receive a religious exemption unless the military can meet the statutory burden of proof, which the military has not and likely cannot. On the other hand, 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…Finally, the military is most likely unable to establish, and certainly has not established, that permitting the relatively small number of RFRA objectors, even if every request for exemption (much less the two at issue in this motion) were sincere and successful, to serve without adverse consequences to their standing and the terms and conditions of their service will adversely affect the public’s interest in the maintenance and readiness of the nation’s military forces. In fact, the public undoubtedly has some considerable interest in maintaining the services of skilled, experienced, highly trained, patriotic, courageous, and esteemed service members, such as the two moving service members, in whom the public has an immense financial investment and who are not, to say the least, readily replaceable.” [5]

Judge Merryday pressed the Department of Justice counsel about the fact that the military is not showing that removing service members is the least restrictive means available. Judge Merryday also noted that he has to weigh the adverse impact of removing a highly qualified and skilled service member who is not easily replaceable against the minimal, if any, benefit of a “vaccine” in view of the fact that it is not preventing the transmission of Omicron. He pointed out that the military is now at its highest rate of vaccinated service members and also at the highest rate of COVID cases. With the shot not preventing transmission, “why,” he asked, “cannot a small number of service members remain unvaccinated because of their religious beliefs?” [9]

Judge Merryday previously ordered each branch of the military to file a detailed report regarding religious exemptions from the COVID-19 shot every 14 days beginning Friday, January 7, 2022. The documents prove that the military continues to deny religious exemptions while granting medical exemptions. According to the court, after three filings, [10]

“the Navy has denied 81 appeals and granted none, the Marine Corps has denied 119 appeals and granted 3, and the Air Force has denied 443 appeals and granted 1 appeal (and granted 8 initial requests). According to the notice, neither the Army nor the Coast Guard has resolved an appeal.” [10]

Witnesses & Experts

On March 10,2022 the court heard several witnesses.

Liberty Counsel presented compelling testimony from the Navy Commander and three military flight surgeons, Lt. Col. Peter Chambers, Lt. Col. Teresa Long and Col. (Ret.) Stewart Tankersley. [3] one of whom was injured by the COVID shots. [3]

In contrast, the Department of Defense (DOD) declined to present witnesses. The Department of Defense counsel refused to produce the Commodore of the Navy to be subjected to cross-examination. [3]

Dr. Long testified in federal court that she was ordered by high-level command not to discuss the controversy over Department of Defense data indicating a massive spike in serious injuries and illnesses among military personnel when the vaccines were rolled out in 2021. [2]

“I have so many soldiers being destroyed by this vaccine. Not a single member of my senior command has discussed my concerns with me,” she said amid tears. “I have nothing to gain and everything to lose by talking about it,”
She added that she is willing to lose her career “because I am watching people get absolutely destroyed.”
She said she regularly has been contacted by military personnel who have been injured by the shots, and most are pilots, who “have to meet one of the highest fitness standards.”
Amid the pressure to get vaccinated, Long described an atmosphere of low morale in which there have been at least two suicides.

The flight surgeon Chambers testified that he was ordered to make sure troops received the shots and was told that religious exemptions would be denied. He said that up to 80% of military personnel have contracted COVID-19 despite having had two shots. However, he said, among the unvaccinated, the infection rate was 15%. Chambers said he has had to delay his plan to retire in 2023 because he developed demyelination of his central nervous system after being vaccinated. [2]

Tankersley, a recently retired flight surgeon, said he has witnessed during the pandemic an unprecedented “suppression of scientific dialogue.” He said the shots are neither safe nor effective, explaining the delivery mechanism of the mRNA vaccines bypasses the natural immune system and creates inflammation that can inhibit the body’s innate immunity. Tankersly said he has treated more than 200 COVID patients with no fatalities using treatments such as ivermectin. Meanwhile, the Defense Department insists that the only way to combat COVID is to force vaccination and get rid of personnel who won’t comply. [2]

Relevant Prior Judgements/ Cases

On September 9, 2021, Joe Biden signed an executive order attempting to force COVID shots on more Americans, including federal employees, all private employers with 100 or more employees, health care workers, educators and even children. [11]

The courts recognize the constitutional protections against these lawless mandates and are striking them down one by one. For example, here’s the various courts’ recent actions: [11]

11-30-21 – Judge Gregory F. Van Tatenhove (KY) grants preliminary injunction against mandate for federal contractors in KY, OH, TN.

12-7-21 – Judge Stan Baker (GA) grants nationwide injunction against mandate for federal contractors in GA, AL, ID, KS, SC, UT, WV.

12-15-21 Judge Dee Drell grants preliminary injunction regarding contracts and grants with the states of IN, LA, MS.

12-20-21 – Judge David Noce (MO) grants preliminary injunction against mandate for federal contractors in AK, AR, IA, MO, MT, NE, NH, ND, SD, WY.

12-22-21 – Judge Steven Merryday (FL) grants preliminary injunction against mandate for federal contractors in FL.

12-31-21 – Judge James Wesley Hendrix (TX) issues preliminary injunction against Head Start shot mandate in TX.

1-1-22 – Judge Terry A. Doughty (LA) grants preliminary injunction against Head Start mandate in AL, AK, AZ, AR, FL, GA, LA, IN, IA, KS, KY, MS, MO, MT, NE, ND, OH, OK, SC, SD, TN, UT, WV, WY.