OPINION:
Despite a significant update from the Centers for Disease Control and Prevention (CDC), military members with religious objections to the COVID-19 vaccines are still being coerced into the choice between their jobs and the jab.
On August 11, the CDC acknowledged that “vaccination, past infection, or timely access to testing and treatment can help protect you from getting very sick if you get COVID-19,” and that “people who are older, are immunocompromised, have certain disabilities, or have underlying health conditions” are subject to getting very sick from COVID-19.
But the Navy continues to deny some of the most fit warriors in the military – including Navy SEALs – the freedom to fight.
Earlier this year, First Liberty Institute and Hacker Stephens LLP successfully prevented the Navy from removing 0.6% of all Navy service members, including our Navy SEAL clients, who requested a religious accommodation to the COVID-19 vaccine requirement. In July, similar relief was achieved for 2% of the Air Force. And just last week, members of the Marine Corps were protected, as well.
But what does this interim judicial protection really provide?
While these sailors, airmen, and Marines can continue to collect paychecks and maintain health insurance for their families, many are not allowed to perform the core aspects of their job and all are prevented from necessary travel for training and duty purposes. They are being denied these opportunities, according to the Department of Defense, presumably because they might become severely ill from COVID-19. Yet many have already recovered from infection and have no underlying health conditions.
In June, the Navy’s top officer, Admiral William Lescher, admitted in a deposition that Navy policy permitted the deployment of vaccinated Sailors at high risk for severe cases of COVID-19 because of certain underlying health conditions recognized by the CDC. One of those conditions is obesity, and Admiral Lescher admitted that 25% of the Navy is obese.
Admiral Lescher also admitted that Navy policy permits HIV-positive individuals to deploy at commander discretion. And HIV status may not be the sole basis for restricting deployment opportunities, despite the risks one’s HIV status poses to others in the deployed environment. The Admiral’s deposition was revealed this month in a brief filed by First Liberty and Hacker Stephens LLP at the U.S. Court of Appeals for the Fifth Circuit.
According to the CDC, people who are immunocompromised, such as those with HIV, may not be protected as well as others even if they are up to date on their vaccines. So why is the Navy accepting the risk of over 25% of its force having a severe case of COVID-19, yet for the 0.6% who have a religious objection to being vaccinated, and may have recovered from a past infection, they are actively being prevented from having a career?
Judge James Ho, in another prominent case in the Fifth Circuit, Sambrano v. United Airlines, addresses this issue head-on. In his recent concurring opinion, he found that United Airlines placed its employees with religious objections to taking the COVID-19 vaccine on indefinite, unpaid leave “to coerce its employees into violating their religious beliefs – and what’s worse, to do so irrevocably and permanently.”
He determined that the United’s business decision had nothing to do with safety because as Plaintiffs contend, “the real reason for the vaccine mandate and indefinite unpaid leave policy is ‘virtue signaling’ and ‘currying political favor.’”
Just as the employees at United Airlines are “being coerced into sacrificing [their] faith in order to keep [their] job,” so, too, are the brave men and women who have taken an oath to defend the Constitution of the United States facing a loss of their careers for no justifiable reason.
The best example of this pertains to military pilots with religious objections. They are presently not allowed to fly airplanes for “operational” reasons but are permitted to train vaccinated pilots in closed simulators without social distancing or masking for hours on end. For other members with religious objections, the inability to travel is preventing them from performing core duties.
To promote to the next grade in the military, service members must be able to train and perform basic job requirements. Without those opportunities, performance reports will be negatively impacted in significant ways. In some instances, heavy restrictions on travel will lead to no performance report at all. Imposing such restrictions on unvaccinated military members will soon lead to an overwhelming loss of careers.
In the military, performance reports are the only basis for promotions. So, while having a job today due to judicial intervention is a blessing, maintaining a career will be nearly impossible for religious objectors who wish to continue to serve.
• Danielle Runyan is Counsel for First Liberty Institute, a non-profit law firm exclusively dedicated to defending religious liberty for all Americans. Read more at FirstLiberty.org.
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