Justice Kavanagh Joins Liberal Judges In Decision To Side With Pentagon To Deny Religious Rights Of Navy SEALs Only One Day After Ruling To Protect Religious Rights Of Death Row Inmates
For the past two-and-a-half years, Americans have protested lockdowns and COVID restrictions, but things really heated up when the United States government forced Americans to accept an experimental COVID jab as a condition of employment. But when the jobs and benefits of the brave men and women who risk it all to serve our nation were being threatened, and especially when their religious rights were being ignored—Americans were truly stunned.
On Friday, Trump-appointed US Supreme Court Justice Bret Kavanaugh, whose appointment conservatives fought voraciously for, has once again sided with the liberal justices in a highly controversial case that most conservatives would’ve considered a relatively black and white decision. On Friday, in a 6-3 decision, the US Supreme Court overturned a District Court order, temporarily granting the Pentagon’s request to allow US Navy commanders to consider the COVID vaccination status of 35 Navy SEALs and others in the Naval Special Warfare community when deciding to deploy them.
Justice Kavanaugh sided with Justices Kagan, Sotomayor, Stevens, Bryer, Coney-Barrett (another disappointing Trump-appointed justice who also appears to have taken a left turn), and the former conservative-turned-liberal Chief Justice Roberts, to block the district court’s ruling.
The reliably conservative Supreme Court Justices Gorsuch, Thomas, and Alito were the dissenting votes.
Standing from left to right: Justices Brett M. Kavanaugh, Elena Kagan, Neil M. Gorsuch, and Amy Coney Barrett.
Photograph by Fred Schilling, Collection of the Supreme Court of the United States
Here is a portion of Justice Alito’s exceptional dissent:
Given the nature of this procedure, the results it produced are not surprising. Although more than 4,000 ex- emption requests had been submitted by February 15, 2022, not a single one had been approved when the complaint, in this case, was filed.
In August 2021, the Secretary of the Navy made COVID– 19 vaccination mandatory and threatened severe consequences, including dishonorable discharge and confinement, for anyone who refused. 1 Later, Navy directives told service members that they could apply for religious exemptions, described by the District Court, was largely “theater” designed to result in the denial of almost all requests.
Although more than 4,000 ex- emption requests had been submitted by February 15, 2022, not a single one had been approved when the complaint, in this case, was filed.
Here, Justice Alito shares essential details of the suit brought against the U. S. Navy Seals 1–26 v. Biden case, highlighting the 50-step process that ignored the service member’s basic religious rights and forced them to choose between their religious beliefs and punishment from the Navy.
In August 2021, the Secretary of the Navy made COVID– 19 vaccination mandatory and threatened severe consequences, including dishonorable discharge and confinement, for anyone who refused. 1 Later Navy directives told service members that they could apply for religious exemptions, see Electronic Case Filing in U. S. Navy Seals 1–26 v. Biden, No. 4:21–cv–01236 (ND Tex., Jan. 3, 2022) (ECF), Doc. 44–1, p. 40 (Trident Order #12), but this program, as described by the District Court, was largely “theater” designed to result in the denial of almost all requests. U. S. Navy Seals 1–26 v. Biden, ___ F. Supp. 3d___ (ND Tex. 2022), App. to Application for Partial Stay 31a (App.).
The exemption procedure that the Navy set up included no fewer than 50 steps, and during the first 35 steps, none of the various officials who processed requests gave any consideration to their merit.
A respondent identified as Navy Seal 2 stated that a superior officer advised him that “‘all religious accommodation re- quests will be denied’” because “‘senior leadership . . . has no patience or tolerance for service members who refuse COVID–19 vaccination for religious reasons and want them out of the SEAL community.’ ” U. S. Navy Seals v. Biden, 27 F. 4th 336, ___ (CA5 2022) (per curiam), App. 9a. This officer allegedly added that “‘even if a legal challenge is somehow successful, the senior leadership of Naval Special Warfare will remove [his] special warfare designation.’” Ibid. According to Navy Seal 5, he was told that “‘there [would] be a blanket denial of all religious accommodation requests regarding COVID–19 vaccination.’ ” Ibid. Navy Seal 8 declared that his “ ‘chain of command . . . made it clear that [his] request [would] not be approved and . . . pro-vided [him] with information on how to prepare for separation from the U. S. Navy.’ ” Ibid. Navy Seal 11 stated that a command master chief told him that “ ‘anyone not receiving the COVID–19 vaccine is an “acceptable loss” to the Naval Special Warfare (NSW) community.’” Ibid.
Forced to choose between violating their religious beliefs and the punishment that the Navy threatened, respondents, brought this suit, claiming that the Navy’s denial of their exemption requests violated the Free Exercise Clause of the First Amendment and the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, 42 U. S. C. §2000bb et seq. See Complaint in ECF Doc. 1. The District Court found that these claims were likely to succeed, and it issued a preliminary injunction prohibiting the Navy from taking adverse actions against respondents due to their unvaccinated status. App. 56a. But the court made clear that its order did not require the Navy “to make any particular personnel assignments” and left “[a]ll strategic decisions . . . in the hands of the Navy.” Id., at 60a.
The Government appealed and asked the U. S. Court of Appeals for the Fifth Circuit to stay the preliminary injunction, but the Fifth Circuit refused and issued a detailed opinion. 27 F. 4th 336.
The Government then applied to this Court for what it characterizes as a “partial stay,” and the Court now issues a stay that uses precisely the language that the Government proposed. As I will explain, the Court’s order essentially gives the Navy carte blanche to warehouse respondents for the duration of the appellate process, which may take years. There is no justification for this unexplained and potentially career-ending disposition.
I cannot believe that this Court would tolerate such treatment in other contexts. Suppose, for example, that a federal agency processed employee complaints about discrimination on the basis of race, sex, or disability using a 50-step process in which rejection was presumed until the very last step, and suppose that the record showed that this procedure nearly always resulted in the denial of a claim. We would be outraged—and rightfully so. Why, then, is the Court willing to brush aside what appears to have occurred here?
Justice Alito points out the inequitable treatment of service members who applied for and received medical exemptions vs. religious exemptions.
Respondents are also likely to prevail on their claims under the Free Exercise Clause. Under our case law, if the Federal Government or a State treats conduct engaged in for religious reasons less favorably than similar conduct engaged in for secular reasons, that treatment is unconstitutional unless the relevant jurisdiction can satisfy “strict scrutiny,” which is essentially the same as the standard imposed by RFRA. See Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 878–879 (1990); Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 533 (1993).
Here, the Navy treated service members who applied for medical exemptions more favorably than those who sought religious exemptions. For one thing, requests for medical exemptions were seriously considered, and quite a few were granted, at least on a temporary basis. Application 7–8; 27 F. 4th, at ___, App. 20a (“[T]he Navy acknowledges that it has granted hundreds of medical exemptions from the COVID–19 vaccine, at least 17 of which were temporary medical exemptions for those in Naval Special Warfare”). In addition, service personnel with medical exemptions are not restricted as severely as respondents will be under the Court’s order. App. 42a. Indeed, the District Court found that under Navy policy, those participating in clinical trials and those with medical contraindications and allergies to vaccines remained deployable, unlike those seeking religious accommodations. Id., at 50a (citing ECF Doc. 17–2, at 66). The Navy has no interest in different treatment for accommodation requests that produce otherwise identical outcomes. I would therefore specify in the Court’s order that the Navy must provide equal treatment for all unvaccinated service members.
Alito explains that he (unlike the other so-called “conservative ” justices) w “rubber stamp” the Navy’s decision.
“I agree that the Navy has a compelling interest in preventing COVID–19 infection from impairing its ability to carry out its vital responsibilities, as well as a compelling interest in minimizing any serious health risk to Navy personnel.”
“But the Navy’s summary rejection of respondents’ requests for religious exemptions was by no means the least restrictive means of furthering those interests.”
I would not rubberstamp the Government’s proposed language. While I am not sure that the Navy is entitled to any relief at this stage, I am also wary, as was the District Court, about judicial interference with sensitive military decision-making. Granting a substantial measure of deference to the Navy, I would limit the order to the selection of the Special Warfare service members who are sent on missions where there is a special need to minimize the risk that the illness of a member due to COVID–19 might jeopardize the success of the mission or the safety of the team members. This, I believe, was the aim of the District Court, and respondents themselves understand the preliminary injunction that way.
Finally, Alito points out the court’s hypocrisy, explaining that on Thursday, they decided to honor the religious rights of death row inmates while denying the religious rights of the Navy SEALs the next day.
Today, the Court brushes aside respondents’ First Amendment and RFRA rights. But yesterday, the Court handed down another decision that illustrates the strong protection for religious liberty that is provided by the framework that applies under RFRA and strict scrutiny. The decision in question, Ramirez v. Collier, involved a convicted murderer awaiting execution and his rights under the Religious Land Use and Institutionalized Persons Act of 2000, 14 Stat. 803, 42 U. S. C. §2000cc et seq., which, among other things, essentially requires prisons to comply with the RFRA standard. Ramirez argued that his exercise of religion will be burdened unless Texas allows his pastor to lay hands on him and pray aloud while he is being executed. Ramirez was less than punctilious and consistent in requesting a religious accommodation, see Ramirez, 595 U. S., at ___–___ (slip op., at 4–5); id., at ___ (THOMAS, J., dissenting) (slip op., at 8), but the Court’s decision forgave all that. Texas objected to Ramirez’s request on the ground that the pastor’s conduct might interfere with the execution, but the Court held that the State failed to discharge its burden to substantiate the likelihood of such harm. Id., at ___ (slip op., at 12).
The contrast between our decision in Ramirez yesterday and the Court’s treatment of respondents today is striking. We properly went to some lengths to protect Ramirez’s rights because that is what the law demands. We should do no less for respondents.
In an 8-to-1 ruling on Thursday, the court said Texas may not execute John Henry Ramirez, a death row inmate unless his pastor can pray with and lay hands on him in the death chamber.
The inmate, John Henry Ramirez, was sentenced to death for the murder of a convenience store worker in 2004. Mr. Ramirez stabbed the worker, Pablo Castro, 29 times in a robbery that yielded pocket change. “Castro died on the pavement, leaving behind nine children and 14 grandchildren,” Chief Justice Roberts wrote.
It really got the attention of the American public when the US Navy informed their elite primary special operations force, the Navy SEALs, that they may be responsible for the cost of their education and training if they refuse to accept the experimental jab.
Here is a portion of the memo from the US Navy sent out to the Navy SEALs:
2. Policy. In order to maximize readiness, it is the policy goal of the U.S. Navy to achieve a fully vaccinated force against the persistent and lethal threat of COVID-19.
2.a. In support of the above-stated policy, and as directed by the Secretary of the Navy’s lawful order, the Navy has commenced a mandatory vaccination campaign per references (a) through (c). Navy service members refusing the COVID-19 vaccination, absent a pending or approved exemption, shall be processed for administrative separation per this NAVADMIN and supporting
references. To ensure a fair and consistent process, separation determinations will be centralized under the CCDA as outlined in the paragraphs below.2.b. To date, over 98 percent of active-duty U.S. Navy service members have met their readiness responsibility by completing or initiating a COVID-19 vaccination series. We applaud your commitment to ensuring the continued readiness of our worldwide deployable Navy. Tragically, there have been 164 deaths within the Navy family due to COVID-19, far exceeding the combined
total of all other health or mishap-related injuries and deaths over the same time period. 144 of these were not immunized, and 20 had an undisclosed immunization status.7. Policy. In order to maximize readiness, it is the policy goal of the U.S. Navy to achieve a fully vaccinated force against the persistent and lethal threat of COVID-19.
7.a. and 7.b. The Vice Chief of Naval Operations retains authority for non-judicial punishment and courts-martial. Involuntary extension of enlistments is not authorized on the basis of administrative or disciplinary action for vaccination refusal. The CCDA may seek recoupment of applicable bonuses, special and incentive pays, and the cost of training and education for service members refusing the vaccine.
The Epoch Times reports – The 6-3 ruling overturns a district court order in January and is in place until ongoing litigation is resolved in other lower courts.
Justice Brett Kavanaugh, who was appointed by former President Donald Trump, wrote in a concurring opinion (pdf): “In this case, 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.”
His statement parallels an argument the Biden administration made to the Supreme Court in early March (pdf), which reads, in part: “By requiring the Navy to deploy and assign respondents without regard for their vaccination status, the district court effectively inserted itself into the Navy’s chain of command.”
Kavanaugh also wrote that the Religious Freedom Restoration Act “does not justify judicial intrusion into military affairs in this case.” He said: “That is because the Navy has an extraordinarily compelling interest in maintaining strategic and operational control over the assignment and deployment of all Special Warfare personnel—including control over decisions about military readiness. And no less restrictive means would satisfy that interest in this context.”
Alito, who was appointed by former President George W. Bush, called the ruling a “great injustice” in a dissenting opinion.
Alito also said he dissented due to the language of the Biden administration’s application to the Supreme Court and the high court’s order, which he said: “allows the Navy to use respondents’ unvaccinated status as a reason for directing them to perform whatever duties or functions the Navy wants, including sitting alone in a room pushing paper or reading manuals for the duration of the appellate process.”
Mike Berry, general counsel for First Liberty Institute, the non-profit law firm that filed the suit on behalf of the Navy Special Warfare service members, said in a statement to Fox News: “The Court’s narrow partial stay will not deter our mission to ensure America’s service members do not lose their religious freedom. As Justice Alito said, this is a ‘great injustice.’”
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