Your turn Mike Berry Columnist
“There is no COVID-19 exception to the First Amendment,” U.S. District Court Judge Reed O’Connor wrote. His words, addressed to the United States Navy, should remind all Americans — and especially those in positions of authority — that the Constitution refuses to bow to authoritarian impulses.
Earlier this month, O’Connor issued a preliminary injunction against the US Navy, barring it from taking further action against the 35 Navy SEALs and Special Warfare service members represented by the First Liberty Institute. It also gives hope to the thousands of service members who courageously raised religious objections to receiving the vaccine, knowing full well that their fate had long been sealed.
These service members now have a roadmap to challenge the unfair policies and procedures – described by O’Connor as “theatre” – that the Department of Defense has used to trample on the constitutional rights of our service members.
Soldiers fight for our rights – don’t infringe on theirs
While it is true that our military give up much to protect our freedoms, as O’Connor pointed out, “we are not asking them to set aside their citizens and give up the very rights they are sworn to protect. “.
This includes with regard to vaccines. To date, the Navy has granted hundreds of medical and administrative exemptions to sailors. Ironically, there is even an exemption available for sailors who take part in vaccine clinical trials using placebos. In other words, sailors can be exempted from the vaccine if they participate in a clinical trial in which they remain unvaccinated.
In contrast, the Navy has been utterly unaccommodating to SEALs and thousands of other service members whose sincere religious beliefs prohibit them from receiving the vaccine.
Navy SEALs First Liberty represent Christians of various denominations. Each presented evidence and arguments in court explaining the nature of their religious objection to the COVID vaccine. Some have sincerely prayed to God for guidance and believe receiving the vaccine is a mortal sin. Some oppose it because of the vaccine’s well-documented links to the use of aborted fetal cells during its development.
I too, as a military reserve officer, requested an accommodation due to my religious objection to the vaccine. While still awaiting a response, I do not expect to be the first and only approved religious accommodation.
I had many conversations about faith and service with these men. The Navy can no more question their spiritual devotion than it can question their patriotism or their combat abilities.
Yet the Navy has issued no accommodation for those asserting a religious objection to the COVID vaccine. Zero. The Navy, according to O’Connor, “just automatically approves every refusal”. Forcing a military member to choose between his faith and serving his country is against the Constitution and American values. And punishing him for simply asking for a religious accommodation is purely vindictive and illegal.
No attempt to accommodate the SEALs
There was a time when our military found a way to accommodate the religious beliefs of military members while allowing them to serve. During World War II, the Army attempted to court-martial Private Desmond Doss for refusing to carry a weapon due to his religious beliefs that taking life is wrong. The military came to their senses and allowed Doss to serve as a noncombatant medic. Doss went on to win the Medal of Honor for his heroic feats in the Battle of Okinawa, during which he saved over 70 lives. If the military can find a way to accommodate servicemen’s religious beliefs during a world war, it certainly can do so today.
The dozens of Navy SEALs and Special Warfare personnel that First Liberty represents collectively have more than 350 years of military experience and more than 100 combat deployments. These are exactly the kind of elite warriors our nation needs. And yet, they each suffered real harm because of their religious beliefs.
Some have been ordered to remove their special warfare gear – SEALs wear the famous “Trident” – indicating that they are no longer part of the special warfare community. Others were warned that even if their religious accommodation was miraculously approved, they would still be kicked out of the SEALs in disgrace. The Navy has also threatened to recoup the expense invested in them to make them the elite warriors that they are. At the preliminary injunction hearing last month, one of our SEAL clients who suffered a traumatic brain injury while serving our nation spoke. He testified that the Navy sought to prevent him from attending a traumatic brain injury clinic because he refused the vaccine. He offers to go at his own expense, in his own vehicle, to a clinic that does not care about his vaccination status. It defies common decency to deprive a member of the medical care necessary for injuries sustained in the line of duty. This is no way to defend a nation or lead an army.
Pandemic or not, the government – including our military – has no license to abrogate the freedoms enshrined in our law and our Constitution. The men who drafted the First Amendment were no strangers to pestilence, famine, or war. They understood that the worst tyrannies are those imposed supposedly “for the greater good”.
So far, none of the lawsuits challenging the military’s vaccination mandate have been successful. O’Connor’s decision is a beacon of hope that paves the way for our men and women in uniform to continue to serve with their religious freedom intact. For that, every freedom-loving American should be justly proud. In the meantime, let’s hope the Department of Defense comes to their senses and right this ship.
Mike Berry is general counsel at the First Liberty Institute and a former active duty officer in the US Marine Corps. To learn more, please visit www.firstliberty.org.