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Navy SEALs fighting COVID vax mandate get boost from Congress, states, Delta Force legend

"If anything, vaccination of naturally immune airmen decreases their combat readiness," law professor and doctor tell appeals court, contradicting Navy's rationale for vaccine mandates. Attorneys general note very low COVID death, hospitalization rates in military.

Published: September 2, 2022 3:25pm

Updated: September 3, 2022 11:08pm

More than two dozen members of Congress and nearly half the states are supporting Navy SEALs in their legal efforts to secure religious exemptions from COVID-19 vaccine mandates, rejecting the Biden administration's invocation of judicial deference to military decisions.

They filed friend-of-the-court briefs with the 5th U.S. Circuit Court of Appeals last week, arguing the "near-total denial rate" for religious requests and preference for nonreligious requests violates the Free Exercise Clause, the "overwhelmingly bipartisan" Religious Freedom Restoration Act and state RFRAs.

Other briefs came from retired Lt. Gen. William "Jerry" Boykin, onetime commander of the Army's Delta Force and Green Berets and deputy undersecretary of defense for intelligence, plus a law professor who successfully sued his university for a vaccine exemption and the founder of Arizona's largest private surgical practice. 

This spring the Supreme Court overturned a trial judge's injunction on the Navy making deployment decisions based on SEALs' vaccination status, with Justice Brett Kavanaugh citing the Navy's "extraordinarily compelling interest" in maintaining "control over decisions about military readiness." 

Beyond the 26 SEALs, the plaintiffs include a handful of "special warfare combatant craft crewmen," divers, and an "explosive ordnance disposal technician." The First Liberty Institute, which is representing them all, told Just the News they remain banned from deployment, training and travel.

The 22 state attorneys general, led by Mississippi's Lynn Fitch, noted the military hadn't approved a single religious request before the service members sued in February. The 47 approvals thus far followed scoldings by "all three levels of the federal judiciary": a Texas district judge, the 5th Circuit and Justice Samuel Alito's dissent.

This is despite only 95 deaths reported from 441,138 reported COVID cases across the services, "a fatality rate of 0.022%," and 2,721 hospitalizations (0.617%), with even lower Navy rates. The official statistics "do not reflect unreported cases" or the likely lower rates that followed widespread vaccination and natural immunity, the brief says.

The AGs deal with daily situations where "sincere claims of religious freedom compete with powerful government interests" in managing prisons, enforcing drug laws and policing, and their states' responses to COVID show how religious exercise "can flourish even in a pandemic." 

Federal policies, by contrast, are "beset by tenuous claims of legal authority, policies adopted despite the evidence undercutting them, and a willingness to override basic liberties," they wrote. Courts' historic deference to military decisions should not apply to civilian policymakers who "mask abuse of religious freedom" by hiding behind military-readiness arguments.

"The Administration appears to be using another 'work-around' — overstepping statutory limits to achieve a higher vaccination rate, as it did with the eviction moratorium and with its vaccine mandates," the AGs' brief said.

"No right is more precious than the right to religious liberty," according to the brief by eight senators and 19 House members, led by Sen. Ted Cruz (R-Texas) and Rep. Mike Johnson (R-La.). 

The administration and Pentagon have rejected "non-vaccination measures" for religious service members to mitigate COVID spread that "worked for more than a year" before vaccines were authorized, while the Navy exempts those with medical issues or who "took a placebo vaccine as part of medical trials."

"Congress passed RFRA for exactly this situation" where the government restricts religious exercise "without a compelling interest and without regard to less restrictive alternatives," they wrote. This shows the same "hostility to religion" the Supreme Court has repeatedly rejected in cases involving a Christian baker, Catholic social services and home Bible studies.

The military readiness argument falls apart "where Congress has clearly spoken on the issue," and the administration does not argue that "Article II imperatives absolve the Navy’s chain of command from complying with RFRA," the lawmakers said.

The brief by three-star general Boykin, who became an ordained minister after retirement, warned that the military is "less ready to combat the threats posed by America's enemies around the world" when it refuses religious exemptions.

"[L]etting our warriors hold fast to their religious, moral, and ethical convictions" is integral to their performance in "highly dangerous and sensitive situations," Boykin argues, adding he has witnessed that religion "produces the will to stay in the fight when times get hard."

Whatever specific religious belief underlies their objections to the vaccines, Navy SEALs have good secular reasons to be wary, according to the brief. These young men face a "fairly low health threat" from COVID and must be in "extraordinarily good health" for their positions. Currently available vaccines, moreover, are "not proving to be effective against the current strains."

Most of the brief is written in the first person by Boykin himself with only "light edits" from counsel, it says.

"Personally, I know about the leakiness of these vaccines because I have been vaccinated and boosted and still contracted Covid-19," Boykin wrote. "In fact, maintenance and support of the warrior spirit of our combatants can be a more powerful vaccine than those administered by shots in the arm."

The Vaccine Adverse Events Reporting System lists 160,000 hospitalizations and 28,000 deaths following COVID vaccination, which is likely an undercount because it's a "voluntary" system "meant to pick up large signals of drug or vaccine injury," Boykin said.

George Mason University law professor Todd Zywicki and doctor Jeffrey Singer incorporated their regulatory comment filed against the administration's since-withdrawn large employer vaccine mandate in their brief.

"The most up-to-date, scientific literature confirms that, once people contract COVID-19, they develop natural immunity to the disease that protects against infection and transmission at least as effectively as vaccination," so mandating jabs cannot be the "least restrictive means" to protect "the health and mission of the naval forces," they wrote.

The brief explains in detail the difference between vaccine-induced and natural immunity, which produces antibodies that "recognize a broad array of proteins carried by the virus," reduce transmission even at peak infection and evolve greater "potency and breadth" over time.

The Navy ignores more than 150 studies that show longer and more durable protection from recovery than from COVID vaccines, falsely claiming "insufficient data" show comparable protection from natural immunity, they wrote.

"If anything, vaccination of naturally immune airmen decreases their combat readiness, as the vaccines' adverse effects are more severe for previously infected people," the brief says. "Thus, to survive strict scrutiny, any vaccine mandate must, at minimum, exempt COVID-recovered service members."

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