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Liberty Counsel filed its brief at the Eleventh Circuit Court of Appeals on behalf of two service members in Navy SEAL 1 v. Austin who were granted a preliminary injunction for being denied religious exemptions from the COVID shot mandate. The Department of Defense (DOD) appealed the injunction to the Eleventh Circuit Court of Appeals.

In addition to these two plaintiffs from the Navy and the Marines, Liberty Counsel continues to pursue class certification to protect all service members.


Federal Judge Steven Merryday granted a preliminary injunction for a Marine Corps Lieutenant Colonel and a Navy Command Surface Warfare Officer who testified about their sincerely held religious beliefs for not taking the COVID shots. These two plaintiffs in the case were scheduled to be disciplined on February 2 and February 3, after their appeals for religious exemptions were denied by their respective military branches. The court based its ruling on the federal Religious Freedom Restoration Act (RFRA), finding that the Marines and the Navy failed to demonstrate “to the individualized person” two of RFRA’s essential requirements on government action that burdens a person’s sincere religious belief – a compelling interest and the least restrictive means.

Both service members testified in person before Judge Merryday. Liberty Counsel also presented in-person testimony in support of the injunction of military medical experts, including U.S. Army Lt. Colonel Dr. Pete Chambers, Lt. Colonel Dr. Teresa Long, and Colonel (Ret.) Dr. Stuart Tankersley. While Judge Merryday urged the DOD to present in-person testimony, but the DOD refused to do so.

Liberty Counsel’s brief states, “The DOD ‘provides a religious accommodation process, but by all accounts, it is theatre.’ And, that theatrical performance violates the First Amendment and RFRA. Despite the DOD’s protestations to the contrary, ‘there is no military exclusion from our Constitution.’ The district court’s preliminary injunction should be upheld.”

Navy Commander testified in court that “my command continued to execute mission requirements during the height of the COVID-19 pandemic without the benefit of a vaccine. The force health protection protocols we executed have proven successful and are a less restrictive means of furthering the government’s compelling interest without infringing upon any service member’s religious freedoms.”

This testimony is unrebutted. Based on the law and the facts of the case, Judge Merryday found that the DOD lacked a compelling government interest and failed to show that mandatory COVID vaccination is the lease restrictive means available “to the person” as required by RFRA. The DOD has never presented any evidence to rebut this finding.

Liberty Counsel Founder and Chairman Mat Staver said, “The evidence is clear that these courageous service members have a strong case. The Department of Defense has no defense to its unlawful violation of the Religious Freedom Restoration Act.”

Author: Liberty Counsel

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