In the News

Supreme Court won’t protect religious freedom, but Navy SEALs never quit

April 1, 2022

By Mike Berry, Vice President of External Affairs, Director of Military Affairs and Senior Counsel

What a difference a day makes. Within twenty-four hours, the United States Supreme Court demonstrated the lengths to which it will go to protect a death row inmate’s religious freedom while declining to protect religious freedom for 35 members of the Naval Special Warfare community.

In Collier v. Ramirez, a nearly unanimous the Supreme Court correctly ruled in favor of an inmate who wants his pastor present during his execution. The government argued that the pastor’s presence might interfere with the execution. But the court held that the government failed to show that interference was a compelling enough reason for burdening the inmate’s religious liberty.

The following day, the Supreme Court reached a conclusion in stark contrast to Ramirez. In Austin v. Navy SEALs 1-26, a majority of the court accepted the government’s argument that a lower court order prohibiting it from considering the vaccination status of Navy members might interfere with its ability to carry out its mission—namely, deployment and assignment decisions. Even though the government failed to show the likelihood of such interference, as in Ramirez, a majority of the Court deemed the government’s mere speculation and conjecture sufficient.

It would be reasonable to conclude from these two back-to-back decisions issued a day apart that a death row inmate enjoys greater religious liberty protection than does a Navy SEAL who committed his life to selfless service and sacrifice for his country.

In his concurrence, Justice Kavanaugh offers the only insight we have into why that might be the case; judges make poor military commanders and should stay out of the military’s business. While Justice Kavanaugh’s rationale would typically constitute wise counsel, his conclusion ignored both the strength of the Religious Freedom Restoration Act, which protects military members, and the facts of the Navy SEALs case.

The Navy SEALs’ attorneys, First Liberty Institute and Hacker Stephens LLP, presented a mountain of evidence demonstrating that the Navy was using the personnel assignment process as a means to punish service members because of their religious objections to the COVID-19 vaccine. For example, Navy members who receive medical or administrative exemptions for the COVID-19 vaccine are not disqualified from specialized assignments and missions while those Navy members who seek religious exemptions are disqualified.

Indeed, it is likely that there are sailors currently deployed around the globe who are unvaccinated due to medical or administrative exemptions. They have and continue to perform their duties alongside their vaccinated shipmates.

Thus, the Navy’s concern is not that there are unvaccinated sailors in its ranks. Navy policy has long tolerated such a scenario. Rather, the Navy’s real issue is the reason for a sailor’s unvaccinated status. According to the Navy, medical reasons are okay; religious reasons are not.

Confronted with such evidence of discrimination, one might expect the Navy to produce its own mountain of evidence showing case after case in which unvaccinated sailors interfered with the Navy’s ability to carry out its national defense mission. The Navy has not because it cannot. In fact, our team produced evidence showing the exact opposite. The Navy even gave some of the SEALs medals for mitigating the risks of COVID-19 during their missions, despite their unvaccinated status.
Thankfully, for our Navy SEALs and for our nation, the Supreme Court’s ruling is narrow, limited, and temporary. The Court made clear that its decision only operates to permit the Navy to consider vaccination status when making assignment and deployment decisions, and nothing more. In fact, a federal court recently expanded the injunction, which remains in place, to prohibit the Navy from disciplining or discharging or applying the vaccine mandate to all Navy personnel while their requests for religious accommodation are pending. The Navy has already issued guidance in accordance with that decision.
In the meantime, these 35 heroes and their attorneys will continue to live by the mantra that is embedded in the Navy SEALs’ DNA: Never quit.

Note: This article was first published on Fox News and is re-published here with permission. The article presents the main points of an op-ed published in Fox News. This work was authored by Mike Berry. The full article can be found on the Fox News website, here.

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