on Mar 25, 2022
at 6:20 pm
The Supreme Court on Friday gave the Pentagon the go-ahead to consider whether some members of the elite Navy SEALs are vaccinated against COVID-19 when making operational decisions. With three justices noting dissents, the court temporarily blocked an order by a federal trial court that U.S. Solicitor General Elizabeth Prelogar said would commandeer “the Navy’s authority to decide which servicemembers should be deployed to execute some of the military’s most sensitive and dangerous missions.” The ruling came over the objection of a group of SEALs who oppose the Navy’s vaccination policy on religious grounds; the SEALs had argued that what the Navy really wants is “permission to engage in hostile tactics designed to coerce” the SEALs “into disregarding their religious beliefs.”
In August 2021, Secretary of Defense Lloyd Austin announced that all active-duty members of the military must be vaccinated against COVID-19. However, the Supreme Court’s ruling on Friday affects only the Navy’s ability to consider whether the SEALs and other members of the Naval Special Warfare Command are vaccinated when making personnel decisions – for example, about whom to deploy and where. The government had not asked the justices to allow it to enforce other aspects of its vaccine policies that the SEALs are challenging and a trial court in Texas had also blocked, such as allowing it to discipline or discharge unvaccinated servicemembers.
The Biden administration came to the Supreme Court on March 7, asking the justices to allow it to consider vaccination status while the litigation continues. The government characterized the trial court’s ruling as an “extraordinary and unprecedented intrusion into core military affairs,” and it stressed that because of the intense and high-risk nature of the SEALs’ work, the government has an “extraordinarily compelling interest in ensuring that the servicemembers who perform those missions are as physically and medically prepared as possible,” including by being vaccinated against COVID-19.
Dismissing the administration’s concerns as a “fig leaf,” the SEALs urged the justices to keep the trial court’s order in place. Not only is the COVID-19 pandemic “waning,” they wrote, but the lower court’s order merely maintains the status quo – which are the personnel decisions that the Navy has already made about how to assign the SEALs. The real problem, the SEALs suggested, is that the Navy has not “granted a single request for religious accommodation for any servicemember, though it has granted hundreds of non-religious exemptions.” The SEALs conceded that “judges should not presume to run the military,” but they emphasized that courts should also not “turn a blind eye to violations of the Constitution or the Religious Freedom Restoration Act. And the Navy cannot cloak its desire to punish” the SEALs “for requesting religious accommodation in claimed ‘operational’ needs without judicial scrutiny,” they added.
In a one-paragraph order, the Supreme Court on Friday granted the administration’s request to put part of the trial court’s order on hold while the government appeals to the U.S. Court of Appeals for the 5th Circuit and, if necessary, the Supreme Court. Justice Clarence Thomas, who spent the past week in the hospital before being discharged Friday morning, indicated that he would have denied the government’s request.
Justice Brett Kavanaugh, who worked in the White House under President George W. Bush, wrote a brief concurring opinion to explain why he agreed with the decision to put part of the trial court’s ruling on hold. Kavanaugh saw the issue as a “simple” one: “Under Article II of the Constitution, the President of the United States, not any federal judge, is the Commander in Chief of the Armed Forces.” Although the trial court in this case may have been “well-intentioned,” Kavanaugh suggested, even the federal law protecting religious freedom still “does not justify judicial intrusion into military affairs in this case” 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.” “I see,” Kavanaugh concluded, “no basis in this case for employing the judicial power in a manner that military commanders believe would impair the military of the United States as it defends the American people.”
Justice Samuel Alito dissented, in a 10-page opinion joined by Justice Neil Gorsuch. Alito complained that the challengers in this case “appear to have been treated shabbily by the Navy,” describing a lengthy and complicated exemption procedure that had not yet yielded any religious exemptions. And Alito objected to what he characterized as the broad language of the Supreme Court’s order, arguing that it would effectively give the Navy “carte blanche to warehouse” the challengers until the litigation is resolved, “which make take years.” At the same time, Alito acknowledged that he was “wary” about “judicial interference with sensitive military decision making.” Therefore, Alito explained, he would have issued a narrow order that only blocked the Biden administration from making personnel decisions for SEALs and other members of the Special Warfare Command “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 article was originally published at Howe on the Court.