Another Court Gives Relief To Military Objectors To COVID Vaccine

Last week, an Ohio federal district court became the latest to grant a preliminary injunction to members of the military who have religious objections to the military's COVID vaccine mandate. In Doster v. Kendall, (SD OH, March 31, 2022), the court said in part:

The Court finds the targeted relief Plaintiffs now seek is "a prohibition against disciplinary or separation measures to these Plaintiffs under RFRA," and thus the Court grants a preliminary injunction of such scope, enjoining Defendants from taking any adverse or punitive action, including but not limited to disciplinary or separation measures, against the Plaintiffs in this case for their refusal to receive the COVID-19 vaccine, while keeping in place the current temporary exemption. 

The Court's conclusion is not affected by the Supreme Court's recent decision in Austin v. U.S. Navy Seals 1-26, 2022 WL 882559, or Justice Kavanaugh' s concurrence which cautions against intervention in the military' s chain of command. That case is distinguishable from the present one, and this Court's injunction. As set forth below, the injunction in this case is limited to solely these Plaintiffs and only maintains the status quo by maintaining the current temporary exemptions and prohibiting adverse or punitive action against those Plaintiffs for their refusal to receive the COVID-19 vaccine. It does not affect the Air Force's ability to make operational decisions, including deployability decisions.

Liberty Counsel issued a press release announcing the decision.

Pew Survey On Attitudes Toward Religious Exemption Claims To Vaccine Mandates

Yesterday the Pew Research Center released the results of its American Trends Panel survey on attitudes toward COVID-19 mandates and claims of religious objections to vaccines. A release titled Americans skeptical about religious objections to COVID-19 vaccines, but oppose employer mandates reads in part:

Two-thirds of U.S. adults say most people who claim religious objections to a COVID-19 vaccine “are just using religion as an excuse to avoid the vaccine,” while about a third (31%) say they think the objectors “sincerely believe getting a COVID-19 vaccine is against their religion.”

At the same time, most Americans do not think those with religious objections to the COVID-19 vaccine – regardless of the sincerity of their beliefs – should lose their jobs. A majority of adults (65%) say employers that require coronavirus vaccinations should “allow employees who have religious objections to keep their jobs even if they decline to get the vaccine.” Around a third (32%) disagree....

11th Circuit Grants Limited Stay Of Injunction Against Navy's Vaccine Mandate

In Navy SEAL 1 v. Secretary of the U.S. Department of Defense, (11th Cir., March 30, 2022), the U.S. 11th Circuit Court of Appeals granted a limited stay of a Florida district court's preliminary injunction granted to two service members who objected on religious grounds to complying with the military's COVID vaccine mandate. The court allowed the Navy to consider the plaintiffs’ vaccination status in making deployment, assignment, and other operational decisions while appeals are pending. However the court refused to stay the injunction more broadly. Liberty Counsel issued a press release announcing the decision.

District Court Issues Class-Wide Injunction To Navy SEALS Vaccine Objectors

 In U.S. Navy SEALs 1-26 v. Austin, (ND TX, March 28, 2022), a Texas federal district court granted a class-wide preliminary injunction to  4,095 Navy servicemembers who object on religious grounds to the Navy's COVID-19 vaccine mandate and have filed religious accommodation requests. The court also certified two sub-classes. However, the court immediately stayed the injunction "insofar as it precludes the Navy from considering respondents’ vaccination status in making deployment, assignment, and other operational decisions." This decision expands the court's previous grant of a preliminary injunction to 35 individual plaintiffs into a class-wide injunction.  That order was stayed, pending appeal, by the Supreme Court, insofar as it barred the Navy from considering the COVID vaccination status of the service members in making deployment, assignment and operational decisions. (See prior posting.) Liberty Counsel issued a press release announcing the decision.

Supreme Court Stays District Court's Ban On Navy Applying Vaccine Mandate To SEALs With Religious Objections

Yesterday in Austin v. U.S. Navy Seals 1-26, (Sup.Ct., March 25, 2022), in a case on its shadow docket, the U.S. Supreme Court by a vote of 6-3 stayed a Texas district court's order that barred the Navy from considering the COVID vaccination status of 35 service members in making deployment, assignment and operational decisions. The service members all have religious objections to the vaccines. The Court's stay remains in effect while appeals to the 5th Circuit and, subsequently if necessary, to the Supreme Court are pending. The stay was granted through an unsigned one-paragraph order.  However, Justice Kavanaugh filed a concurring opinion, saying in part:

[T]he District Court, while no doubt well-intentioned, in effect inserted itself into the Navy’s chain of command, overriding military commanders’ professional military judgments. The Court relied on the Religious Freedom Restoration Act... But even accepting that RFRA applies in this particular military context, RFRA does not justify judicial intrusion into military affairs in this case. 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.

Justice Thomas dissented without opinion.  Justice Alito, joined by Justice Gorsuch, filed a dissenting opinion, which concluded that the Navy had not satisfied the requirements of RFRA or the 1st Amendment.  However, the opinion would grant limited relief to the Navy while appeals are pending.  The opinion said in part:

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 [district court's] 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.

NBC News reports on the decision. [Thanks to Joshua Sarnoff via Religionlaw for the lead.]

Churches Can Move Ahead On Damage Claims Against County For Its COVID Orders

In Calvary Chapel San Jose v. Cody, (ND CA, March 18, 2022), two churches and their pastors sued the state of California and Santa Clara County over their COVID orders. As explained by the court:

Beginning in March 2020, both the State and the County issued emergency orders that instituted capacity limits for certain types of facilities, restricted the practice of certain activities (including singing and chanting), and required individuals to wear masks in many situations....

[Plaintiffs alleged] that the emergency orders imposed harsher restrictions on churches than on other institutions. When Calvary Chapel admittedly defied those orders, Plaintiffs allege that the County sent threatening letters to the church’s bank and levied against it millions of dollars in fines for the violations. Plaintiffs bring nine claims, alleging violations of their First, Eighth, and Fourteenth Amendment rights under the Federal Constitution, violations of the California Constitution, and a violation of California’s Bane Act.

The court granted the state of California's motion to dismiss, finding that plaintiffs' claims for injunctive and declaratory relief are moot, and that any claim for damages is barred by the 11th Amendment. However damage claims against the county were allowed to move forward. The court concluded that plaintiffs had adequately plead free exercise, freedom of assembly, equal protection, and excessive fines claims.

Anti-Abortion Protesters Can Move Ahead With Challenge To COVID Order

 In Global Impact Ministries, Inc. v. City of Greenspboro, (MD NC, March 16, 2022), a North Carolina federal district court allowed plaintiffs who were anti-abortion protesters, to move ahead with their free speech, freedom of association, equal protection, due process and 4th Amendment claims.  Plaintiffs allege that the city's COVID stat-at-home order was enforced to bar them from walking, praying, and counseling outside of an abortion clinic while others who were not praying or engaging in religious speech were allowed to walk in the area. The court did dismiss plaintiffs' free exercise claim, finding that the COVID order was neutral and generally applicable.

Another Suit Seeks Religious Exemptions From Military's Vaccine Mandate

Yet another group of military personnel have filed suit challenging the military's COVID vaccine mandate.  As in a number of other cases, plaintiffs complain that while regulations allow religious exemptions, almost all applications for them are denied.  The complaint (full text) in Roth v. Austin, (D NE, filed 3/8/2022), was filed by 36 Air Force and Air National Guard members who allege that their rights under RFRA and the First Amendment have been infringed. WOWT reports on the lawsuit.

Suit Challenges DC's Remaining Mask Mandate For Catholic Schools

In Mayor's Order 2022-029 (Feb. 14, 2022), the District of Columbia lifted its COVID mask mandate for various business and recreation venues, and houses of worship, but continued the mandate for a number of facilities including "Public, public charter, private, parochial, and independent schools."  On Monday, suit was filed in the D.C. federal district court by parents of Catholic school students alleging that keeping the mask mandate on Catholic schools violates RFRA and the First Amendment. The complaint (full text) in Dugan v. Bowser, (D DC, filed 3/7/2022) alleges in part:

Defendants’ mandate requiring the children to wear masks in their Catholic school classrooms—while allowing children and adults to not wear masks nearly everywhere else—is arbitrary, unscientific, and irrational. Under Defendants’ policy, a child could sit for hours at the Wizards game at the crowded Capitol One Arena without wearing a mask, but she must cover her face for seven hours a day, the moment she steps into her Catholic school building....

In addition to unconstitutionally burdening Catholic schools and treating them unequally, Defendants’ prolonged mask mandate has had substantially detrimental effects on—and is continuing to significantly impede—the Parents’ children’s Catholic formation and education.

ADF issued a press release announcing the filing of the lawsuit.

UPDATE: On March 11, ADF announced that the lawsuit has been voluntarily dismissed after D.C. revoked the mask mandate.  (Plaintiff's Notice of Voluntary Dismissal).

Questionnaire Upheld As Basis For Vaccine Religious Exemption

In Ferrelli v. State of New York Unified Court System, (ND NY, March 7, 2022), a New York federal district court upheld the system for determining whether employees are entitled to religious exemptions from the COVID vaccine mandate imposed on all judges and employees of the New York state court system. The court described the screening process for exemptions in part as follows:

[T]he two most common reasons for seeking a religious exemption were (1) concern about the connection between COVID-19 vaccines and fetal cells, and (2) concern about the sanctity or purity of the applicant’s body.... Because the committee often found the information in applicants’ personal statements insufficient to assess the basis for and sincerity of the belief, it created a supplemental form.... In particular, Section A inquires as to applicants’ use of other medications and vaccinations that were tested using fetal cell lines, and requests explanations of inconsistencies in past or present use of such products.... Section B requests information about other medicines, medical treatments, vaccines and/or foods from which the applicant abstains due to her religious beliefs; when she began abstaining; and why her faith requires such abstention.....

The court concluded that this exemption process was neutral and generally applicable, saying in part:

Defendants have not created a system of individualized exemptions and refused to extend it to religious hardships. Rather, they have created a system of religious exemptions and refused to extend it to Plaintiffs based on responses, or lack thereof, to a supplemental form.

Pentagon Asks Supreme Court To Stay Injunction Obtained By Navy SEALS Who Object To Vaccines

 Yesterday in Austin v. U.S. Navy Seals 1-26 the Pentagon filed with the Supreme Court an Application (full text) for a stay while appeals are pending of an injunction issued by a Texas federal district court. In the case, the district court issued a preliminary injunction barring the Navy from imposing its COVID vaccine mandate on 35 Navy service members who have religious objections to the vaccines. (See prior posting.) The  Pentagon sought a stay of the injunction from the 5th Circuit insofar as it precludes the Navy from considering vaccination status in making deployment, assignment, and other operational decisions. The 5th Circuit refused to grant the stay. (See prior posting.)  In its Application to the Supreme Court, the Pentagon contends in part:

[E]ven if respondents’ claims had merit, respondents would not be entitled to an injunction dictating the Navy’s deployment, assignment, and operational decisions.... An injunction that trenches on core Article II prerogatives concerning which military servicemembers are qualified for which missions  ... has no precedent in our Nation’s history.

The Application was filed with Justice Alito who called for appellees to respond by March 14. SCOTUSblog reports on the filing.

Stay Of Injunction Denied In Suit Over Religious Exemptions From Military's Vaccine Mandate

In Navy Seal 1 v. Austin, (MD FL, March 2, 2022), a Florida federal district court refused to stay, pending appeal, an injunction that had been granted to two service members who refused to comply with the military's COVID vaccine mandate.(See prior posting.)  In refusing the stay, the court said in part:

Although certainly not “given the task of running the Army,” the courts in the narrow instance of RFRA are given the task of ensuring that those who are given the task of running the Army (and the armed forces in general and every other component of the federal government) conform their actions to the governing law, to RFRA, to which the admirals and the generals and commandants are unquestionably subordinate — just like the President, the Speaker of the House, the Chief Justice, and every other person in the federal government.

Liberty Counsel issued a press release announcing the decision.

Pro-Life Demonstrators Have Free Exercise Claim After Arrest For Violating COVID Order

In Global Impact Ministries v. Mecklenburg County, (WD NC, March 1, 2022), a North Carolina federal district court allowed pro-life demonstrators who were arrested for violating a county-city COVID stay-at-home order to move ahead with their free exercise, but not their free speech, claim for nominal damages. Discussing the free exercise claim, the court said in part:

Until fairly recently, the Supreme Court’s Free Exercise jurisprudence was highly deferential to COVID-19 regulations that burdened religion.... That deference changed dramatically with the Supreme Court’s decisions in Roman Catholic Diocese v. Cuomo ... and Tandon v. Newsom....

Plaintiffs allege that the Proclamation precluded them from engaging in pro-life activities, which Plaintiffs believe are a form of religious ministry.... They allege that shoppers at Home Depot were exempted from gathering limits, while their religiously motivated gatherings were prohibited.... Those activities are comparable for purposes of the Free Exercise analysis.... Because shopping indoors is likely to present greater risk for spreading COVID-19 than socially distanced sidewalk advocacy, strict scrutiny must apply here....

Moving to the free speech claim, the court said in part:

Defendant Mecklenburg County argues that the Proclamation was a valid content-neutral time, place, and manner restriction.... The Court agrees....

There is admittedly an obvious logical incongruity in finding that the Proclamation was not content-neutral for purposes of the free exercise claim, but content-neutral for purposes of the free speech claim. But neither the Supreme Court nor the Fourth Circuit has applied Tandon’s modified approach to content neutrality outside of the context of free exercise claims.

5th Circuit Upholds Injunction Against Vaccine Mandate For Navy Seals With Religious Objections

In U.S. Navy Seals 1-26 v. Biden, (5th Cir., Feb. 28, 2022), the U.S. 5th Circuit Court of Appeals refused to grant the Navy a partial stay of an injunction issued by a Texas federal district court protecting 35 special warfare personnel who object on religious grounds to complying with the military's COVID vaccine mandate. The court said in part:

Defendants have not demonstrated “paramount interests” that justify vaccinating these 35 Plaintiffs against COVID-19 in violation of their religious beliefs. They insist that “given the small units and remote locations in which special-operations forces typically operate, military commanders have determined that unvaccinated service members are at significantly higher risk of becoming severely ill from COVID-19 and are therefore medically unqualified to deploy.” But “[r]outine [Naval Special Warfare] mission risks include everything from gunshot wounds, blast injuries, parachute accidents, dive injuries, aircraft emergencies, and vehicle rollovers to animal bites, swimming or diving in polluted waters, and breathing toxic chemical fumes.” There is no evidence that the Navy has evacuated anyone from such missions due to COVID-19 since it instituted the vaccine mandate, but Plaintiffs engage in life-threatening actions that may create risks of equal or greater magnitude than the virus.

Air Force Reservist With Religious Objection To COVID Vaccine Wins Injunction

In Poffenbarger v. Kendall, (SD OH, Feb. 28, 2022), an Ohio federal district court issued a preliminary injunction barring the Air Force from taking further adverse action against an Air Force reservist who refuses for religious reasons to comply with the military's COVID vaccine mandate.  The court concluded that plaintiff's rights under both RFRA and the free exercise clause were violated, saying in part:

Defendants have not shown that the Air Force’s action meets the least-restrictive-means test. The evidence indicates that the Air Force has granted virtually zero exemptions to the COVID-19 vaccine mandate on religious grounds.... At the same time, the Air Force has granted thousands of exemptions to the COVID-19 vaccine mandate on non-religious grounds.... This supports that less restrictive means of furthering the Air Force’s interests are being provided (even if only on a “temporary” basis) on non-religious grounds. And, the Defendants have not shown why such less restrictive means cannot likewise be provided to Poffenbarger.

Springfield News-Sun reports on the decision.

Certiorari Denied In Challenge To Maine COVID Vaccine Mandate

Yesterday the U.S. Supreme Court denied review in Does 1-3 v. Mills, (Docket No. 21-717, certiorari denied, 2/22/2022) (Order List). At issue in the case is whether Maine's COVID vaccine mandate for healthcare workers, without the availability of religious exemptions, violates the Free Exercise clause. (See prior posting.) LifeNews reports on the denial of certiorarai.

Supreme Court Denies Injunction As School System Postpones Vaccine Mandate

In Doe v. San Diego School District, (Sup. Ct., Feb. 18, 2022), the U.S. Supreme Court issued an Order (full text) refusing to enjoin a school district's COVID vaccine mandate that does not provide for religious exemptions.  The Court said in part:

Because respondents have delayed implementation of the challenged policy, and because they have not settled on the form any policy will now take, emergency relief is not warranted at this time. Applicants’ alternative request for a writ of certiorari before judgment and a stay pending resolution is denied for the same reason. The Court’s denial is without prejudice to applicants seeking a new injunction if circumstances warrant.

As a press release from the Thomas More Society relates, the suit was brought by a student athlete whose religious beliefs prevent her from taking the current vaccines because of the use of fetal cells in their development.

Two Servicemembers Get Preliminary Injunction Preserving Their Religious Objections To COVID Vaccine

In Navy Seal 1 v. Austin, (MD FL, Feb. 18, 2022), a Florida federal district court granted a preliminary injunction to two service members who objected on religious grounds to complying with the military's COVID vaccine mandate.  The court said in part:

Under the command of RFRA, the military bears the burden of showing both the existence of a compelling governmental interest and the absence of a less restrictive means of reasonably protecting that interest. In the instance of Navy Commander and Lieutenant Colonel 2, the Navy and the Marine Corps have failed manifestly to offer the statutorily required demonstration that no less restrictive means is available, and each of the two service members is entitled to preliminary injunctive relief that (1) permits them, pending a final determination on a complete record, to continue to serve without the vaccination....

[T]he Navy, the Marine Corps, and the Air Force submit ... the twenty-five most recent letters denying an appeal and submit every letter granting a religious exemption. The submission reveals a process of “rubber stamp” adjudication by form letter, a process incompatible with RFRA’s command to assess each request “to the person.”

On February 2, the same court had issued a temporary restraining order in the case. (See prior posting.) Liberty Counsel issued a press release announcing the most recent decision.

UPDATE: In an April 1, 2022, decision (full text), the district court modified the preliminary injunction to allow the Marine Corps to consider vaccination status in making deployment, assignment, and other operational decisions.

UPDATE: On April 21, the court issued an opinion (full text) supporting its April 1 Order.

5th Circuit: United Airlines Employees Irreparably Injured By Religious Coercion Over COVID Vaccine

In Sambrano v. United Airlines, (5th Cir., Feb. 17, 2022), the U.S. 5th Circuit Court of Appeals, in a 2-1 per curiam decision, reversed a Texas federal district court's decision that no "irreparable injury" had been suffered by United Airlines employees who were placed on unpaid leave after they refused for religious reasons to comply with the company's COVID vaccine mandate.  The district court held that the employees were not entitled to a preliminary injunction because their loss of income could be remedied by an award of damages in an action under Title VII.  The 5th Circuit majority disagreed, saying in part:

Critically, we do not decide whether United or any other entity may impose a vaccine mandate. Nor do we decide whether plaintiffs are ultimately entitled to a preliminary injunction. The district court denied such an injunction on one narrow ground; we reverse on that one narrow ground and remand for further consideration....

Properly understood, the plaintiffs are alleging two distinct harms— one of which is reparable ..., and the other of which is irreparable.... The first is United’s decision to place them on indefinite unpaid leave; that harm, and any harm that flows from it, can be remedied through backpay, reinstatement, or otherwise. The second form of harm flows from United’s decision to coerce the plaintiffs into violating their religious convictions; that harm and that harm alone is irreparable and supports a preliminary injunction.

Judge Smith wrote a stinging 56-page dissent, saying in part:

In its alacrity to play CEO of a multinational corporation, the majority shatters every dish in the china shop. It rewrites Title VII to create a new cause of action. It twists the record to fit that invention. It defies our precedent and the commands of the Supreme Court. But this majority is no senseless bull. Knowing exactly what it has wrought, the majority declares that its unsigned writing will apply to these parties only. By stripping its judgment of precedential effect, the majority all but admits that its screed could not survive the scrutiny of the en banc court....

For every conceivable reason that the plaintiffs could lose this appeal, they should. The statute does not allow the relief they seek. Nor do our precedents; if they did, the Supreme Court has overruled them. If they have not been overruled, fifty years of precedent and centuries of Anglo-American remedies law show that preliminary relief may not issue. If it could issue, it shouldn’t, because the only plaintiffs with standing claim no harm from the “impossible choice” between full postjudgment relief and eternal damnation.

Chicago Tribune reports on the decision.

NYC Teachers, Seeking Religious Exemptions, Resubmit Injunction Request To Justice Gorsuch

As previously reported, last week in Keil v. City of New York, Justice Sotomayor Acting on an Emergency Application to the U.S. Supreme Court filed by a group of New York City teachers, refused to enjoin the dismissal of teachers with religious objections who refused to comply with the City's COVID vaccine mandate. Invoking Supreme Court Rule 22.4, the teachers on Feb. 14 requested that their petition be resubmitted, this time to Justice Gorsuch. (Full text  of request letter). Justice Gorsuch has referred the request to the full Court for their March 4 conference. The Second Circuit which refused to grant an injunction pending appeal has already scheduled a hearing on the merits of the teachers' claims for Feb. 24.  CNN reports on these developments. [Thanks to Scott Mange for the lead.]