Navy SEAL 1
v.
Austin
ACLL Role:
Case Start Date:
Original Court:
Practice Area(s):
Amicus
October 15, 2021
U.S. Court of Appeals for the Eleventh Circuit
Limited Government
CASE SNAPSHOT
In the fall of 2021, the Biden administration decided that all members of the military would have to get vaccinated against COVID-19. Liberty Counsel, representing a group of Navy SEALs and other military personnel, brought a suit against the Biden administration when it refused to grant religious accommodations. The trial judge granted an injunction in favor of the plaintiffs, and the Biden administration appealed. ACLL filed a friend-of-the-court brief in the Eleventh Circuit arguing that the injunction should remain in place.
Status:
ACLL filed a friend-of-the-court brief at the Eleventh Circuit on June 17, 2022.
For the Media
CASE SUMMARY
Background
In the fall of 2021, the Biden administration imposed a COVID-19 vaccine mandate on the military. Our friends at Liberty Counsel brought a class-action suit on behalf of a group of Navy SEALs and representatives of other branches of the military, seeking accommodations for sincerely held religious beliefs. The most common religious objection is that the vaccines were developed in connection with aborted fetal cells, and therefore many people believed that they could not accept the vaccine in good conscience. Despite the fact that these service members had put their lives on the line for their Country, they faced the possibility of dishonorable discharges if they refused to take the vaccine.
Fortunately, the district court judge to which the case was assigned recognized the plight of our service members and provided some injunctive relief. The Biden administration immediately appealed to the U.S. Court of Appeals for the Eleventh Circuit, seeking to have the injunction lifted. Teaming up with the American Constitutional Rights Union, ACLL filed an amicus brief supporting the servicemembers and urging the court to keep the injunction in place.
Questioning the One-Size-Fits-All Approach
In religious freedom cases, if the federal government substantially burdens a person’s religious exercise or applies a law that is not neutral or generally applicable in a way that burdens free exercise of religion, then “strict scrutiny” applies. In constitutional law, the strict-scrutiny test requires the government to prove that its infringement on free exercise of religion is justified because (1) it serves an interest of the highest order (called a “compelling” interest), and (2) the means it has chosen to pursue that interest is the least restrictive means. In this case, the government has the power to make exceptions, and forcing servicemembers to face a dishonorable discharge for adhering to their beliefs is certainly a substantial burden on religious exercise. Thus, strict scrutiny applies.
In our view, the federal government’s primary job is to protect our country through the military, so the military could plausibly claim that it is pursuing a compelling interest. But that is not the end of the analysis. The military must also prove that the means it has chosen is the least restrictive means of achieving that interest. That is where the military’s one-size-fits-all approach falls apart.
If this were 2020 or 2021, the courts would be less likely to take an honest look at the medical and scientific evidence when it comes to COVID-19. Instead, they would be more likely to defer to the political branches of government. But since the pandemic is winding down, we believe that the courts will be more likely to look at the facts as they are.
By the CDC’s own data, COVID has about a 99.92% survival rate for people ages 18-49, which is the age-range that mostly matches the military. As of the time we filed our brief, the military had reported 415,956 cases of COVID and 95 deaths. In contrast, 28,000 Americans have died from strokes, heart attacks, and blood clots. Given the data, it does not appear that forcing everyone to be vaccinated is the least restrictive means of protecting American national security.
Thinking Carefully About Constitutional Rights
Undoubtedly, public-accommodation laws in their traditional role were good, as was the Civil Rights Act. But if we are not careful, the ever-expanding scope of public-accommodation laws can sweep away fundamental liberties in the process. Three in particular come to mind.
The first is freedom of religion. This Country was settled by people who were seeking to exercise their faith freely. Since free exercise of religion is our first freedom, it must be protected. LGBT nondiscrimination laws do not get a pass simply because they were passed under the guise of public accommodations.
The second is freedom of speech. Closely related to free exercise of religion is the freedom from having to speak a message that violates one’s deeply held beliefs. As bad as the courts have been sometimes, they have been good at protecting freedom of speech. In the same way, public-accommodation laws cannot force a person to speak a message which he or she finds blatantly immoral.
Finally, there is freedom from involuntary servitude. This is the right to be free from working for another against one’s will. While the Thirteenth Amendment’s prohibition on involuntary servitude would not have included the right to refuse the kinds of necessary services described above, it would prohibit the government from forcing one to put her artistic skills to work for another against her will. Leading commentaries from the nineteenth and twentieth centuries have held that forcing one to perform a personal-service contract against her will could violate the Thirteenth Amendment. ACLL believes that this situation has arisen here.
The Cost of Failing to Honor Religious Freedom
The Liberty Counsel suit represents Navy SEALs, Marine Corps officers, Army Rangers, Air Force and Coast Guard officers, and many more. Their plaintiffs represent elite and irreplaceable warriors from across the different branches of the military. Given that these people are willing to face punishment rather than violate their religious convictions, kicking them out of the military will have an even greater impact on military readiness than a lack of COVID vaccination. Instead of hurting our national defense, the military should do what Americans have done from our founding until now: honor religious convictions and try to find a way to achieve a win-win. Such a solution is both in the interests of America’s national security and respects what the First Amendment requires.
Importance to Limited Government
One of the cornerstones of limited government is religious freedom, because it presumes that there is a power higher than the State. If the government can force people to violate their religious beliefs, then it has replaced God as de facto highest power to which the People must answer. If the State is God, then it can do whatever it pleases. Therefore, preserving religious freedom is essential to preserving the notion of limited government.
Also at issue in this case is the matter of bodily autonomy. While there is no express “bodily autonomy” provision in our Constitution (unlike the provision recognizing the right to free exercise of religion), prudence dictates that the government should treat very carefully when it comes to telling people to take medical treatments to which they do not consent. Because both COVID and the vaccines can kill or severely injure a person, that person should be the one who decides how he or she will proceed. Failing to respect individual autonomy gives the government more power to make life-or-death decisions for each person, which is antithetical to the notion of limited government.
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