Federal Judge Steven Merryday granted a temporary restraining order to two service members pending a hearing as a result of Liberty Counsel’s request for an emergency injunction in Navy SEAL 1 v. Biden. The hearing will be in U.S. District Court in Tampa on February 10 at 10 a.m.ET.
While the current order applies to two of the many military plaintiffs because of the immediate harm, the lawsuit includes members from all branches of the military and also requests class certification to cover every member whose religious exemptions has been denied.
One plaintiff is a U.S. Marine Corps Lieutenant Colonel who faced immediate and irreparable harm beginning today. Her appeal for religious exemption was denied. Today she was to be added to the Officer Disciplinary Notebook, and her command selection withdrawn, irreparably damaging her career. This event would have begun the process of her ultimate discharge from the Marine Corps.
Another plaintiff, a U.S. Navy Command Surface Warfare Officer, faced immediate discipline on February 3, at which time he would have been removed from command of his ship, irreparably damaging his career because he was denied a religious exemption from the COVID shot.
While setting a hearing for February 10, Judge Merryday stated he searches in vain for any justification for the military’s refusal to grant accommodations. He says the plaintiffs are “most unlikely” to meet their burden, and forecasts that he will reach the same result. Judge Merryday wrote, in part:
“The record in this action establishes that the two service members are very likely to prevail on their claim that their respective branch of the military has wrongfully denied a religious exemption from COVID-19 vaccination. The record creates a strong inference that the services are discriminatorily and systematically denying religious exemptions without a meaningful and fair hearing and without the showing required under RFRA (while simultaneously granting medical exemptions and permitting unvaccinated persons to continue in service without adverse consequence). One struggles to imagine a wholesome and lawful explanation for the results evidenced in this record. The military is well aware of the frailty of their arguments in defense of their practices. Those arguments both procedural and substantive, are rejected in an action that is distinctively parallel to this action. U.S. Navy Seals 1–26, et al v. Biden, 4:21-cv-1236-O, Doc. 66, 2022 WL 34443 (N.D. Tex. Jan. 3, 2022) (characterizing the military’s review of requests for a religious exemption as “theater” and granting relief to the service member plaintiffs). Rejection on the same or a more encompassing basis is likely in this action (especially if the conduct of the military continues along the present lines).”
Judge Merryday’s order continues:
“The two moving service members face either (1) a most-likely-unlawful deprivation of their accumulated status and standing in the United States military, as well as prospective advancement and benefits, or (2) deprivation of their constitutional and statutory rights to Free Exercise and the statutory right to receive a religious exemption unless the military can meet the statutory burden of proof, which the military has not and likely cannot. On the other hand, the military faces a trivial, if any, prospect of material injury as a result of permitting the service members continued service under the same terms and conditions and with the same privileges and emoluments as currently prevail, especially because the military permits a large group of unvaccinated persons to serve without adverse consequence…Finally, the military is most likely unable to establish, and certainly has not established, that permitting the relatively small number of RFRA objectors, even if every request for exemption (much less the two at issue in this motion) were sincere and successful, to serve without adverse consequences to their standing and the terms and conditions of their service will adversely affect the public’s interest in the maintenance and readiness of the nation’s military forces. In fact, the public undoubtedly has some considerable interest in maintaining the services of skilled, experienced, highly trained, patriotic, courageous, and esteemed service members, such as the two moving service members, in whom the public has an immense financial investment and who are not, to say the least, readily replaceable.”
Liberty Counsel Founder and Chairman Mat Staver said, “This is a great victory for religious freedom, especially for these military heroes who love God and love America. It is shameful how the military is treating these honorable service members. The military under the Biden administration is denying every religious exemption request while granting medical exemptions. The abuse and pressure being placed upon these military members is unconscionable and must stop. This is the beginning of the end of such abuse of the law and of these honorable men and women.”