As COVID mandates end across U.S., lagging military still denying vaccine religious exemptions

Despite recent court decisions, the Air National Guard and Navy are both trying to force their COVID-19 vaccine mandates on service members seeking religious exemptions.

Updated: March 3, 2022 - 10:36pm

As COVID-19 mask and vaccine mandates are rescinded across the U.S. — whether under court order or in acquiescence to changing political winds — the Pentagon is counting on a combination of litigation and administrative evasion to maintain its policy of forcing COVID vaccination on religious objectors in the military.

Even New York and some Michigan schools are lifting their mask mandates, while Washington, D.C. is keeping theirs for schools while ending the vaccine and indoor mask mandates. But the Air National Guard is still looking for a way to enforce its COVID vaccine mandate against those filing "religious accommodation requests" (RARs) in pursuit of exemptions.

In an email sent Tuesday to state and wing JAGs, Brig. Gen. Sue Ellen Schuerman (assistant to the general counsel, National Guard Bureau-Air, Washington, D.C.) said the court decision in Air Force Officer v. Austin et al "reiterated the need for individualized assessment of RAR requests." 

In that February ruling in favor of an officer whose RAR was denied, the U.S. District Court for the Middle District of Georgia granted the first preliminary injunction against the Air Force's vaccine mandate.

Schuerman claimed in her email that in order to provide individualized assessments of religious accommodation requests, a new template is to be used "for providing the facts and analytical discussion needed to give each request appropriate consideration."

However, previous RARs that do not already contain this template "will not be returned to states for revisions" but should simply have it added to the RAR packages. This means that decisions made on RARs will not receive additional, more individualized review but simply have the new template attached to them, justifying the prior denials.

The Air National Guard was unable to respond to a request for comment by publishing time.

Military religious freedom attorney Davis Younts told Just the News on Wednesday he found it "frustrating as an Air Force Reservist and a JAG that the Air National Guard's answer to litigation isn't to send the packages back and do it right," but to simply add more information for the denial instead of providing a fresh review.

The Air National Guard's decision to continue with alleged blanket denials of RARs comes as the Fifth Circuit Court of Appeals on Monday denied the federal government's motion for a partial stay of the preliminary injunction pending appeal in Navy SEALs 1-26, v. Biden.

The Biden administration sought a partial stay of the preliminary injunction, which prevented the Defense Department "from enforcing certain COVID-19 vaccination requirements against 35 Navy special warfare personnel and prohibited any adverse actions based on their religious accommodation requests," according to the appeals court's decision.

The government argued that "the injunction precludes them from considering Plaintiffs' vaccination statuses 'in making deployment, assignment and other operational decisions,'" the court noted.

In denying the government's request, the appeals court found: "The Navy has granted hundreds of medical exemptions from vaccination requirements, allowing those service members to seek medical waivers and become deployable. But it has not accommodated any religious objection to any vaccine in seven years, preventing those seeking such accommodations from even being considered for medical waivers."

The Defense Department also sought to stay a preliminary injunction in Navy SEAL 1 v. Austin. In that case, Judge Steven Merryday of the U.S. District Court for the Middle District of Florida in Tampa had enjoined the military from taking "any adverse action against two Liberty Counsel plaintiffs, a Navy warship commander and a Marine lieutenant colonel, because of their refusal to take COVID-19 shots based on religious beliefs," according to Liberty Counsel press release.

On Tuesday, Merryday denied the Pentagon's request to stay the preliminary injunction, scolding the government's use of the term "refusers" in its motion when referring to the service members seeking religious exemptions.

"The term 'refusers' is a tellingly offensive term that the defendants must employ no further in this court. A RFRA claimant is not a 'refuser,' not an outcast subject to shunning," Merryday wrote.

"A review of the defendants' motion reveals that the defendants persistently and resolutely cling to the belief that their accustomed and unfettered command discretion need not yield — on the narrow and specific question of the free exercise of religion — to the statutory command of RFRA or to an order under RFRA from a district court (actually, at this moment, orders from several district courts and a circuit court of appeals), the forum selected by Congress and enacted in RFRA to resolve a dispute under RFRA (in other words, Congress and the President, not the district court, chose the district court as the proper forum for service members to assert the RFRA claim asserted in this action)," the judge noted.

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