Pentagon officials now can consider whether some Navy SEALs are vaccinated against COVID-19 when making operational decisions, after the Supreme Court on Friday gave the Pentagon the go-ahead.
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The court, which noted dissents by three justices, temporarily blocked an order from a federal court that U.S. Solicitor General Elizabeth Prelogar said would limit “the Navy’s authority to decide which servicemembers should be deployed to execute some of the military’s most sensitive and dangerous missions.”
A group of SEALs opposing the Navy’s vaccination policy objected to the ruling on religious grounds; they argued that what the Navy actually wanted was “permission to engage in hostile tactics designed to coerce” the SEALs “into disregarding their religious beliefs.”
The Secretary of Defense Lloyd Austin announced in August 2021 that all active-duty military personnel must be vaccinated against COVID-19. Nevertheless, the Supreme Court’s ruling affects only the Navy’s ability to make personnel decisions regarding the SEALs and members of the Naval Special Warfare Command who are vaccinated – such as how and where to deploy them.
The government had not requested the court to allow it to enforce other parts of its vaccine policies which the SEALs are challenging, and which a Texas trial court had also blocked, such as letting it discipline or discharge unvaccinated servicemembers.
During the legal proceedings, the Biden administration asked the justices to allow consideration of vaccination status.
The government described the trial court’s ruling as an “extraordinary and unprecedented intrusion into core military affairs,” and it stressed that because of the high-risk nature of SEAL missions, it has an “extraordinary interest in ensuring that the servicemembers performing those missions are as physically and medically prepared as possible,” including by being vaccinated against COVID-19.
According to the SEALs, the administration’s concerns were nothing more than a “fig leaf,” and the trial court’s ruling should stand.
In addition to the COVID-19 pandemic “waning,” they wrote, the lower court’s order simply maintains the status quo – that the Navy has already made regarding how to assign the SEALs.
However, the real problem, claimed the SEALs, is that the Navy has not “granted a single request for religious accommodation for any service member, though it has granted hundreds of non-religious exemptions.”
SEALs agreed that “judges should not presume to run the military,” but they also stressed that courts should not “turn a blind eye to violations of the Constitution or the Religious Freedom Restoration Act. And the Navy cannot cloak its desire to punish” the SEALs “for requesting religious accommodation in claimed ‘operational’ needs without judicial scrutiny,” they argued.
On Friday, the Supreme Court sided with the administration, granting a request to put part of the trial court’s order on hold while the government appeals to the U.S. Appeals Court for the 5th Circuit and, if needed, the Supreme Court. After spending the past week in the hospital, Clarence Thomas said he would have rejected the government’s request.
Brett Kavanaugh, a former White House official under President George W. Bush, wrote a concurring opinion explaining his agreement with the decision to put part of the trial court’s decision on hold. In Kavanaugh’s view, the issue was a “simple” one: “Under Article II of the Constitution, the President of the United States, not any federal judge, is the Commander in Chief of the Armed Forces.”
Despite the trial court’s well-intentioned ruling, Kavanaugh argued, even the federal law protecting religious freedoms “does not justify judicial intrusion into military affairs in this case” considering “the Navy has an extraordinarily compelling interest in maintaining strategic and operational control over the assignment and deployment of all Special Warfare personnel — including control over decisions about military readiness.”
“I see,” Kavanaugh wrote, “no basis in this case for employing the judicial power in a manner that military commanders believe would impair the military of the United States as it defends the American people.”
In a 10-page opinion, Justice Samuel Alito and Justice Neil Gorsuch dissented. In his complaint, Alito said that the challengers in this case “appear to have been treated shabbily by the Navy,” describing a protracted and complex exemption system that had not yet produced any religious exemptions.
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In addition, Alito objected to what he described as the wide language found in the Supreme Court’s order, contending that it effectively gives the Navy “carte blanche to warehouse” the dissenters until the litigation is settled, “which make take years.”
At the same time, Alito said he is “wary” about “judicial interference with sensitive military decision making.”
Accordingly, Alito said, he only would have prohibited the Biden administration from making personnel decisions about SEALs and other Special Warfare Command personnel “who are sent on missions where there is a special need to minimize the risk that the illness of a member due to COVID-19 might jeopardize the success of the mission or the safety of the team members.”