Military Mandate Case

Military Mandate Case

Military Mandate Case

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

 

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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.
  • 1-13-22 – The U.S. Supreme Court (6-3) issues a stay against OSHA mandates. OSHA has now repealed the mandate.
  • 1-21-22 – Judge Jeffrey Brown (TX) grants preliminary injunction against mandate for federal workers nationwide.

 

Decision

 

Media


US Navy Doctor Whistleblower on Vaccine Deaths -Apr 13, 2022

source: odysee\shortXXvids


US Navy Dr Long Testifies to Sen Johnson’s Panel on Vaccine Injuries

source: nicorster


Camp Pendleton Marine joins legal fight for vaccine exemptions

source: ABC 10 News


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PoliceMandateCase:HighCourt

PoliceMandateCase:HighCourt

Police Mandate Case: High Court

Re: the Legality of mandating vaccines to the “Frontline Employees” (NZDF & police) of New Zealand

 

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Facts of the Case

  • Dates: Jan 6, 2022 (filed)
  • Location: New Zealand
  • Court: High Court
  • Case #: CIV-2022-485-000001/ [2022] NZHC 291
  • Plaintiff: Yardley, Wallace & a Defence Force Worker
  • Plaintiff’s Lawyer: M I Hague & A P Miller
  • Expert Testimony: Dr Petrovsky
  • Defendant: Minister for Workplace Relations & Safety, Commissioner of Police, Chief Of Defence Force, & the Attorney General
  • Trial Type: High Court
  • Justice: Francis Cooke
  • Status: Decided (Feb 25, 2022)
  • Verdict: for the Plaintiff


*updated March 10, 2022

 

Background

The challenge, put forward by a three Defence force and police employees, questioned the legality of making an order under the Covid-19 Public Health Response Act to require vaccination for frontline employees. [1]

and who face termination if they are not vaccinated by 1 March 2022. [2]

The challenge was supported by a group of 37 employees affected by the mandate, who submitted written affidavits to the court. [1]

Minister of Workplace Relations and Safety Michael Wood, Deputy Police Commissioner Tania Kura and NZDF Chief People Officer Brigadier Matthew Weston filed affidavits defending the mandate. [1]

As it stands, 164 of the overall police workforce of nearly 15,700 were affected by the mandate after choosing not to be vaccinated. For NZDF, the mandate affected 115 of its 15,500 staff. [1]

The Police and Defence Force mandate was introduced by the Minister for Workplace Relations and Safety by the COVID19 Public Health Response (Specified Work Vaccinations) Order 2021 in December 2021. It required all Defence Force personnel and all Police constables, recruits and authorised officers to receive two doses of the vaccine by 1 March 2022. It was additional to existing vaccination policies Police and Defence had already introduced internally.  [3]

 

The 25-year police veteran Detective Senior Sergeant Ryan Yardley says the family’s decision to not get the Covid vaccine exposed them all to unfair treatment, unable to work, to go to restaurants and cafes, or to associate with friends. [4]

“And then I watched the mandates rolling for the teachers, and then the hospital staff, and I could see the harm and hurt that it was doing across society. Just from talking to friends and other people and hearing everyone’s stories. And that does not align with my values. And then the fact that people started getting separated and discriminated in society in relation to where they can and can’t go.” [4]

He and his family were not just opposed to the vaccine mandate – they were also personally against being vaccinated. “Everyone has to weigh that up for themselves personally and try and figure out the benefit versus risk scenario,” he said. [4]

“Because obviously, there are some known side effects that are coming out, myocarditis and other ones and I think it’s affecting more of the younger guys. I’m just slightly above that that age bracket, but it’s enough to make me concerned.”[4]

 

Significance

The landmark case means that the police and NZDF cannot be fired for refusing to take the experimental covid vaccine. This case may be used to overthrow all of PM Ardern’s mandates in New Zealand. [1]

 

Plaintiff’s Argument

The applicants challenge the Order on four main grounds: [2]

(a) that the Order was not properly made for the purposes of the Act and it is inconsistent with those purposes; and

(b) that the Order is inconsistent with other legislative provisions in the Defence Act 1990, the Policing Act 2008 and other legislation, and accordingly unlawfully purports to suspend the operation of other legislation; and

(c) that the Order fails to meet the Crown’s obligations under the Treaty of Waitangi for being inconsistent with Treaty principles, including because of disproportionate impact on Māori; and

(d) that the Order is unlawful as it involves an unjustified limit on rights protected by the NewZealand Bill of Rights Act, particularly the right to refuse to undergo medical treatment (s 11), the right to manifest religion (s 15), the right to be free from discrimination (s 19) and other rights recognised by s 28 of the Bill of Rights (including the right to work, and of minority groups to enjoy their culture and practice of religion).

The group relied on two aspects of the Bill of Rights – the right to decline a medical procedure and the right to religious freedom. [1]

On the religious freedom argument, a number of those who made submissions referred to their fundamental objection to taking the Pfizer vaccine, given that it was tested on the cells that were derived from a human foetus. [1]

expert testimony

expert evidence from Dr Nikolai Petrovsky. DrPetrovsky is presently the Director of the Diabetes and Endocrinology Department of Flinders Medical Centre, Academic Professor at Flinders University, and Director of Vaxine Pty Ltd, a biotechnology company specialising in vaccine development and formulation. In this latter role he has developed a vaccine for COVID19 which is presently in use in Iran. Finally the applicants rely on expert evidence from Raharuhi Koia, a Minister within the Presbyterian Church of Aotearoa NewZealand. [2]

 

Defendant’s Argument

…More information is needed…

 

Relevant Prior Judgements/ Cases

Three judicial review proceedings have been heard in the High Court challenging such orders. [2]

1. In September 2021 in GF v Minister of COVID19 Response and Others Churchman J dismissed a challenge to an order bought by a former employee of the New Zealand Customs Service who had had her employment terminated. Two arguments were addressed that the order was ultra vires the Act, and that it was irrational. [2]

2. In October in Four Aviation Security Service Employees v Minister of COVID19 Response I then heard and dismissed a challenge to the order relating to Customs Service employees of broader scope, which included an argument that the order breached the New Zealand Bill of Rights Act 1990 by being an unjustified limit on the right to refuse to undergo any medical treatment as affirmed by s 11.3 I concluded that the order was a justified limit on that right. In doing so I noted: [2]

There is a last point of significance. This case concerns the measure that was introduced when New Zealand had eradicated the virus after the first outbreak, and was seeking to prevent a further outbreak (or delay a further outbreak until a greater proportion of the population is vaccinated, means of treating and managing the virus are better known, and the health system is better organised to address such an outbreak). Since that time it is a matter of judicial notice that an outbreak has occurred in Auckland, and that COVID19 is spreading. It does not appear that this outbreak can be eliminated, reflecting the greater transmissibility of the Delta variant. Whether the challenged measure would remain demonstrably justified on the basis that it contributes to addressing the spread of the virus in circumstances when the virus is endemic in at least parts of New Zealand is an open question. This question is not before me. I note that under s 14(5) of the Act the Minister and DirectorGeneral are obliged to keep their COVID19 orders under review. [2]

3. Finally in November in Four Midwives v Minister for COVID19 Response Palmer J heard and dismissed a claim advanced by certain midwives affected by a vaccine mandate, together with the first part of a challenge to the mandate brought by certain teachers and doctors. Palmer J rejected the argument that the orders were not within the empowering provision of the Act notwithstanding it did not explicitly refer to vaccination. Palmer J endorsed the observation made in Four Aviation Security Services Employees that it was surprising that the legislation had not specifically addressed vaccination and the issues it raised. The second claim in the proceedings brought by teachers and doctors that the relevant order is not a justified limit on the right under s 5 of the Bill of Rights is to be heard shortly. That question was not addressed by Palmer J. [2]

 

Decision

The Order made in the present case is nevertheless unlawful and is set aside. [2]

Justice Francis Cooke ruled that ordering frontline police officers and Defence staff to be vaccinated or face losing their job was not a “reasonably justified” breach of the Bill of Rights. [1]

Justice Cooke agreed with the claim, saying that “an obligation to receive the vaccine which a person objects to because it has been tested on cells derived from a human foetus, potentially an aborted foetus, does involve a limitation on the manifestation of a religious belief.” [1]

However, Justice Cooke disagreed with the claimants’ broader claims that requiring vaccination is inconsistent with holding religious beliefs more generally. [1]

“I do not accept that a belief in an individual’s bodily integrity and personal autonomy is a religious belief or practice. Rather it seems to me, in the circumstances of this case, to be a belief in the secular concept referred to in section 11 of the New Zealand Bill of Rights Act.” [1]

Justice Cooke also agreed with the claim that the mandate impinged on the right to decline a medical procedure. [1]

The judge said that while it’s clear the government isn’t forcing Police and NZDF employees to get vaccinated against their will and they still have the right to refuse vaccination, the mandate presents an element of pressure. [1]

“The associated pressure to surrender employment involves a limit on the right to retain that employment, which the above principles suggest can be thought of as an important right or interest recognised not only in domestic law, but in the international instruments,” Justice Cooke stated. [1]

But in considering the two claims, Justice Cooke also considered whether or not the mandate fell within the definitions laid out in the Covid-19 Public Health Response Act. [1]

The court accepted that vaccination has a significant beneficial effect in limiting serious illness, hospitalisation, and death, including with the Omicron variant. However, it was less effective in reducing infection and transmission of Omicron than had been the case with other variants of Covid-19. [1]

“In essence, the order mandating vaccinations for police and NZDF staff was imposed to ensure the continuity of the public services, and to promote public confidence in those services, rather than to stop the spread of Covid-19. Indeed health advice provided to the government was that further mandates were not required to restrict the spread of Covid-19. I am not satisfied that continuity of these services is materially advanced by the order,” the Judge said. [1]

“Covid-19 clearly involves a threat to the continuity of police and NZDF services. That is because the Omicron variant in particular is so transmissible. But that threat exists for both vaccinated and unvaccinated staff. I am not satisfied that the order makes a material difference, including because of the expert evidence before the court on the effects of vaccination on Covid-19 including the Delta and Omicron variants.” [1]

An additional claim that the mandate would disproportionately affect Māori was dismissed by Justice Cooke. [1]

 

Aftermath

Nzherald.co.nz reports: The lawyer for the police and Defence staff at the centre of the claim is now calling for the suspended workers to return to their jobs immediately, saying many have given decades of service to their community and are still committed to their jobs. [1]

 

Response from the Plaintiffs

After overturning Police and Defence vaccine mandates in court,  lawyer Matthew Hague, for 200-plus uniformed personnel has written to the Prime Minister today giving her till Friday to remove ‘discriminatory’ vaccine certificates too. [4]

“The Covid vaccination certificates requirement does not prevent or limit the risk of the outbreak or spread of Covid-19,” he wrote. “United We Stand ask that you immediately revoke the order or amend it to remove the Covid vaccination certificates requirement.”

“If the Covid vaccination certificates requirement is not removed by 4 March 2022, United We Stand has instructed us to apply for judicial review of the order.” [4]

He has also written to Police Commissioner Andrew Coster and Chief of Defence Air Marshal Kevin Short, saying it was not enough to just pause the termination processes. Those who have taken leave without pay should now be allowed to return to work, and those who resigned under threat of dismissal should be allowed to get their old jobs back. [4]

“Now that the High Court has determined that the order is unlawful and should be set aside, there is no basis for the ultimatum given to these workers. They must immediately be given the option of being reinstated with backpay.” [4]

Hague and Yardley confirmed there were ongoing discussions about the next steps – which may include the steeper legal challenge of suing the Government for damages. But first, they want an apology for the “enormous amount of harm” done to the officers and their families. [4]

The court heard evidence of 164 police, and 115 defence staff, who were still refusing to be vaccinated at the start of this month. It’s thought the full number of affected personnel (uniformed and civilian) is higher than that, because some simply resigned rather than face dismissal. [4]

Ryan Yardley told Newsroom that for him, a core principle of Christianity was accepting everyone – not discriminating against particular groups like those who refused to be vaccinated.  Yardley said the mandates went against everything he believed in – his personal faith, and 25 years as a police officer adhering to the Bill of Rights. [4]

“To have something so fundamental stripped away from you, as that right to refuse any kind of medical treatment, just didn’t sit well. [4]

Response from the Defendant

It’s not immediately clear how many Police and Defence personnel, uniformed or civilian, may seek their jobs back. The police said they had retracted 42 termination letters – but acknowledged there were at least 100 more who had taken leave without pay, and more still who had resigned. [4]

Workplace Relations and Safety Minister Michael Wood said the High Court judgment was clear that it was not questioning the efficacy of vaccines nor the role of mandates per se, but just whether they were justified specifically for Police and Defence business continuity. [4]

“As the decision has only just been released, we will take time to consider it and seek advice on next steps,” he said. “The requests for vaccination mandates originally came from Police and Defence, so before making any decision we will go back to them to assess the implications for their operations. [4]

“No Defence and Police terminations will proceed at this time. Affected staff in Police and Defence are being advised.” [4]

 

 

Media


NZ High Court Stops Police Mandate

source: Truths Uncensored


NZ High Court Stops Police Mandate for Religion

source: Faith Reporters


NZ Military & Police Mandate Stopped

source: AussieFighter.


NZ High Court Rules against Mandate

source: Lawyer Sue Gray

 

References

  1. New Zealand High Court ENDS Jacinda Ardern’s Vaccine Mandate: “It’s a Gross Violation of Human Rights”
  2. Court Ruling
  3. High Court Official Media Release
  4. Govt faces legal ultimatum: End mandates and vaccine passes, now

 

Keyword

Arden, Bill of Rights, bodily integrity, Cooke, Covid-19 Public Health Response Act, foetus, freedom, High Court, Jacinda, Justice, Mandate, New Zealand, New Zealand Bill of Rights Act, NZDF, personal autonomy, PM, Religious, Supreme Court, Vaccine


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Navy Vaccine Exemption Case

Navy Vaccine Exemption Case

Navy Vaccine Exemption Case

Re: the Legality of Mandating Vaccines onto the Military without their Consent & against their Religious Objections

 

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Facts of the Case

aka: U.S. Navy SEALs 1-26 v. Biden

  • Dates: Jan 3, 2022
  • Location: Texas, USA
  • Court: US District Court for the Northern District of Texas
  • Case #: Civil Action # 4:21-cv-01236-O
  • Plaintiff: US Navy Seals, et al
  • Plaintiffs Lawyers: First Liberty Institute
  • Defendant: Biden Administration, DOD
  • Trial Type:
  • Judge: Reed O’Connor
  • Status: Decided
  • Verdict: For the Plaintiff


Background

In response to the Biden Administration’s push to mandate that all military personnel get the covid vaccine, 35 navy seals filed a law suit against the Vaccine Mandate citing religious exemption.

This case arises from the United States Navy’s mandatory COVID-19 vaccination policy. Plaintiffs are thirty-five Navy Special Warfare servicemembers, including SEALs, Special Warfare Combatant Craft Crewmen, Navy Divers, and an Explosive Ordinance Disposal Technician. Compl. 1, 8–9, ECF No. 1. Together, they sue President Biden, Secretary of Defense Austin, Secretary of the Navy Del Toro, and the United States Department of Defense. [2]

In August 2021, the Department of Defense (“DoD”) issued a vaccine mandate directing all DoD service members to be vaccinated against COVID-19.Pls.’ App. 146–47, ECF No. 17. The Department of the Navy also implemented its own mandate requiring all active-duty Navy service members to be fully vaccinated before November 28 or face the “full range” of disciplinary action. Pls.’ App. 149–50, ECF No. 17.For service members assigned to Special Operations duty, the Navy’s vaccination policy reads: [2]

[Special Operations] personnel refusing to receive recommended vaccines… based solely on personal or religious beliefs are disqualified. This provision does not pertain to medical contraindications or allergies to vaccine administration.

By early November, 99.4% of active-duty Navy service members had been fully vaccinated against COVID-19. Pls.’ App. 284, ECF No. 17. Plaintiffs are part of the remaining 0.6%. Representing the Catholic, Eastern Orthodox, and Protestant branches of Christianity, Plaintiffs object to receiving the COVID-19 vaccine based on their religious beliefs. [2]

While it allowed service members to apply for religious exemptions to the mandate, it has not granted a single one. In fact, as of Dec. 17, the religious accommodation requests of at least 29 of the 35 naval plaintiffs had been flatly denied. [1]

The service members who filed the lawsuit represent more than 350 collective years of military service, and more than 100 combat deployments. When they inquired about seeking religious accommodation for the vaccine, the Navy informed many of them that they could face court-martial or involuntary separation if they refused to take the vaccine. [1]

One year ago, Biden told Fox News that COVID vaccines should not be mandatory, telling White House correspondent Peter Doocy at the time that he “wouldn’t demand it to be mandatory.” [3]

“I would do everything in my power, just like I don’t think masks have to be made mandatory nationwide.” [3]

 

Significance

This case asks the question if a soldier has individual rights and if the DoD actively violates those.

 

Plaintiff’s Argument

Berry told (Fox News) host Martha MacCallum that every one of the plaintiffs in the case has a unique individual religious belief, as well as the right to hold and exercise that belief — no matter Biden’s or the Pentagon’s view. [3]

“Many of them object to the fact that the vaccine was tested or developed or produced using aborted fetal cells. Others prayed to God [and said] ‘God, what do you want me to do? And God said no.’”

“It would violate their conscience and religious convictions to get the vaccine. Under the law, that is absolutely protected in this country.”

 

Defendant’s Argument

…More information is needed…

 

Relevant Prior Judgements/ Cases

…More information is needed…

 

Decision

Heritage.com explains: [1]

In his order, (Judge) O’Connor granted an injunction against the Biden administration and the Department of Defense, preventing them from enforcing the vaccine mandate against any of the named service members who had applied for a religious exemption.

O’Connor ruled that the blanket denial of their religious waiver requests amounted to a violation of the service members’ rights under the First Amendment and the Religious Freedom Restoration Act.

Under that law, the government may substantially burden a person’s exercise of religion only if it demonstrates that burden is (1) in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that interest.

For O’Connor, the violation of the law was clear:

Defendants have substantially burdened Plaintiffs’ religious beliefs. The government burdens religion when it ‘put[s] substantial pressure on an adherent to modify his behavior and to violate his beliefs.’

That is especially true when the government imposes a choice between one’s job and one’s religious belief. Here, Plaintiffs must decide whether to lose their livelihoods or violate sincerely held religious beliefs.

Because they will not compromise these religious beliefs, Plaintiffs have been threatened with separation from the military and other disciplinary action.

According to the First Liberty Institute, the public interest law firm representing the service members, each of the denials appeared to be identical, suggesting the Navy had not taken any of the religious exemption requests seriously.

O’Connor made note of this in his order, calling the process for seeking a religious exemption nothing more than “theater,” stating that the Navy “merely rubber-stamps each denial,” and stressing that “the record overwhelmingly demonstrates that the Navy’s religious-accommodation process is an exercise in futility.”

“The Navy service members in this case seek to vindicate the very freedoms they have sacrificed so much to protect,” O’Connor wrote, adding:

The COVID-19 pandemic provides the government no license to abrogate those freedoms.

There is no COVID-19 exception to the First Amendment.

There is no military exclusion from our Constitution.

The Judgement ends: [2]

This Court does not make light of COVID-19’s impact on the military. Collectively, our armed forces have lost 80 lives to COVID-19 over the course of the pandemic. Defs.’ App. 263,ECF No. 44-3.  But the question before the Court is not whether a public interest exists. Rather, this Court must address whether an injunction will disserve the public interest. An injunction does not disserve the public interest when it prevents constitutional deprivations. Jackson Women’s Health, 760 F.3d at458 n.9.

The Plaintiffs’ loss of religious liberties outweighs any forthcoming harm to the Navy. Even the direst circumstances cannot justify the loss of constitutional rights. Fortunately, the future does not look so dire. Nearly 100% of the Navy has been vaccinated. Hospitalizations are rising at a much slower rate than COVID-19cases. COVID-19treatments are becoming more effective and widely available

The Judge also quoted George Washington, referring to the rights of soldiers as separate from the state:

When we assumed the Soldier, we did not lay aside the Citizen.” (1775).

Those words are carved into the marble of the Memorial Amphitheater in the Arlington National Cemetery.

 

Aftermath

Mike Berry, general counsel for First Liberty Institute, said:

Forcing a service member to choose between their faith and serving their country is abhorrent to the Constitution and America’s values … . Punishing SEALs for simply asking for a religious accommodation is purely vindictive and punitive. 

We’re pleased that the court has acted to protect our brave warriors before more damage is done to our national security.

The next stop in the litigation is likely to be an appeal by the Department of Defense and the Biden administration to the U.S. Court of Appeals for the 5th Circuit.

  • Other federal court challenges to various COVID-19 vaccine mandates are ongoing.
  • On Jan. 7, the Supreme Court is set to hear oral arguments in a set of high-profile, consolidated cases on the Biden administration’s vaccine mandates for private-sector entities with 100 or more employees, and for health care facilities that receive Medicaid and Medicare funding.
  • The Heritage Foundation, a petitioner in the case challenging the private-sector vaccine mandate, has asked the court to invalidate the government’s order. (The Daily Signal is the news outlet of The Heritage Foundation.)


Further Research

Court Documents:
In the news:

 

Media

Pilots sue Biden Vaccine Mandate

source: Real America’s Voice

Covid vaccine deadline today for U.S. military

source: CNBC Television

Navy’s Vaccine Mandate

Source: KRIS 6 News

 

References

  1. Court Delivers Win to Military Members Denied Religious Exemptions From Pentagon Vaccine Mandate
  2. Court Ruling
  3. Biden showing ‘religious hostility’ toward SEALs at center of vax mandate suit

 

Keyword

Administration, Biden, Constitution, Department of Defense, District Court for the Northern District of Texas, DOD, Exemption, First Amendment, First Liberty Institute, Military, Naval Special Warfare personnel, Navy, O’Connor, Religious, Religious Freedom Restoration Act, Seals,


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