Secretary Lloyd Austin and the Department of Defense appealed to the U.S. Court of Appeals for the Eleventh Circuit in an attempt to stop the preliminary injunction and the order certifying class action relief for those who currently serve in the United States Marine Corps and have been denied religious exemptions from the unlawful federal COVID shot mandate.
However, the appeal will not even be argued or decided before the trial in the Tampa district court. Liberty Counsel begins depositions this week in preparation for the January 23 trial.
The DOD waited 56 days to file the appeal. The long delay mitigates against any argument that the class action injunction should be reversed on appeal.
Class action relief has been granted that prevents these military heroes from facing discharge, court martial, eviction, other life-altering disciplinary procedures, and termination. The class includes Marines who have been given a mandate to receive an injection that violates their sincerely held religious beliefs.
In his previous order regarding the Marine Corps, U.S District Court Judge Steven Merryday noted that 3,733 Marines requested religious accommodations from receiving the COVID-19 shot ordered by the Secretary of Defense Lloyd Austin in August 2021. Yet the Marine Corps has granted only 11 accommodations which includes only those who are due for retirement and prompt separation.
Then the court posed the question: “Is it more likely than not — in nearly all 3,733 cases —that no reasonable accommodation was available?”
The court continued, “Because the record reveals the substantial likelihood of a systemic failure by the Marine Corps to discharge the obligations established by RFRA, a class wide preliminary injunction is warranted to preserve the status quo, to permit the full development of the record without prejudice to the plaintiffs, and to permit both a trial and a detailed, fact-based resolution of the controlling issues of fact and law.”
“When Congress acts to preserve liberty, especially a liberty historically and constitutionally fundamental to the United States, the courts — the intended preserve of liberty — must not evade or equivocate, must not, so to speak, sacrifice the fundamental right of thousands of privates to Free Exercise in order to gratify the preference of a few generals.”
Judge Merryday continued with a strong statement regarding the rights of these service members under the Religious Freedom Restoration Act by stating, “Obviously, RFRA includes everyone from the President to a park ranger, from the Chief Justice of the United States to a probation officer, from the Speaker of the House to a member’s district office staffer, from the Chairman of the Joint Chiefs of Staff to a military recruiter — even if they don’t like it and even if they don’t agree with it. The Free Exercise Clause and RFRA are the law of the land.”
“Although Marines of different faiths, different education, and different acumen might understand or explain this objection differently and with more or less clarity, many Marines, including Christians and Muslims, object that the COVID-19 vaccine was developed from cell lines derived from electively aborted fetuses and that introducing an mRNA-active substance into their body either desecrates their body, a temple of the Holy Spirt, or is haram, forbidden. In any case, neither the military nor the judiciary can judge the validity of a religious objection (unless the objection is irrational, delusional, or the like) — but can judge only the sincerity of the belief, which is demonstrated firmly in the administrative record by the chaplain’s assessment of sincerity.”
The court continued with statements that the DOD has failed to uphold the religious freedom of Marines who choose to decline the COVID shots for religious reasons—a decision which does not affect their ability to serve in their military positions.
“In sum, the declarations, both bulky and full of numbers, say little or nothing about, for example, the marginal risk, if any, that a particular religiously objecting Marine cannot serve — consistent with the sincerely held religious belief — without vaccination as a reasonable accommodation that both preserves the compelling governmental interest and reasonably accommodates Free Exercise. That is the question, as to each applicant, the Marine Corps scrupulously avoids. But that is a question that RFRA burdens the Marine Corps to answer. It has not.”
“The Marine Corps’s invoking the general observation that precautions other than vaccination might interfere with ‘the demands of military life’ is insufficient to demonstrate ‘to the person,’ that is, in the ‘particular context’ of an applicant’s service, that no precaution other than vaccination is suitable. Further, the Marine Corps invariably fails to demonstrate in the context of each applicant that precautions other than vaccination remain unsuitable even though more than 95% of the Marine Corps is fully vaccinated against COVID-19.”
“In other words, the efficacy of precautions other than vaccination is built into the record, and the Marine Corps undertakes no meaningful effort to disprove the suitability of these precautions. And the record reveals that the passage of time since the outbreak of COVID-19 has not deteriorated the efficacy of these alternative precautions. Rather, as the record confirms, the passage of time has resulted in an almost entirely vaccinated Marine Corps and in COVID-19 variants of much less severity, especially among strong, young, healthy, fit Marines — that is, by far the most of them.”
“The Marine Corps cannot evade RFRA by defining the conditions of service to exclude the possibility of an accommodation. This definitional sleight of hand evades the inquiry that RFRA demands: whether the Marine Corps’s generalized interest in worldwide deployability is materially impaired by tolerating a few religious objectors and accommodating their continued service to the Marine Corps despite the generalized policy of worldwide deployability,” wrote Judge Merryday.
Liberty Counsel Founder and Chairman Mat Staver said, “These military heroes have sacrificed everything to defend America. Yet the DOD continues to abuse and betray these military heroes by denying them the freedom for which they defend this country. As we have said, the COVID shots are neither safe nor effective. Yet the DOD continues to use the mandate to purge the military of honorable service members who love God and love America. Liberty Counsel will not stop defending these heroes.”