More than 60 service members have joined lawsuits against the U.S. government, alleging that the military’s process for awarding religious vaccine exemptions is a sham.
They argue that their 1st Amendment rights are being infringed upon, because their sincerely held religious beliefs prevent them from receiving the COVID-19 vaccine.
“Through much prayer and reflection, Plaintiffs have sought wisdom, understanding, and guidance on the proper decisions to make concerning these COVID-19 vaccines, and Plaintiffs have been convicted by the Holy Spirit that accepting any of the three currently available vaccines is against the teachings of Scripture and would be a sin,” according to a Florida lawsuit first filed in late 2021, then amended on Feb. 7 with additional plaintiffs.
The lawsuit is one of two that have grabbed headlines in recent months, as the military has imposed mandatory vaccination deadlines that have since lapsed for all of the services and their components, save the Army National Guard and Army Reserve.
The goal, representatives for the plaintiffs say, is to at least secure religious exemptions for their clients, but potentially see a Supreme Court ruling that would apply to all service members.
Both cases are in a wait-and-see phase, where judges have granted injunctions against any discipline for vaccine refusal while the government responds to requests for information. The Justice Department intends to appeal the Texas ruling, while a temporary injunction in the Florida case expires Friday.
“I’m very confident that this case going to the Supreme Court,” Mat Staver — whose Liberty Counsel represents plaintiffs in the Florida case — told Military Times on Tuesday. “I think we win under the First Amendment, because you have individualized exemptions with medical exemptions, but not religious exemptions.”
What’s at issue?
What the government will have to prove, in both cases, is that while it’s granted thousands of medical and administrative exemptions ― though many of those are temporary ― that the high bar for approval of religious exemptions is necessary for keeping the force healthy and deployable.
They will also have to make the case that vaccinating, or involuntarily discharging, every service member is the “least restrictive means” of keeping the force safe from COVID-19, rather than enforcing masking or social distancing ― or in some cases, grandfathering in troops who acquired some immunity after catching COVID-19.
The first lawsuit to garner national attention, filed in Texas late last year, made a splash because its plaintiffs include SEALs, among the most elite of the Navy’s special operations forces.
All told the lawsuit includes 26 SEALs from the original complaint, plus five special warfare combatant crewmen, five divers and one explosive ordnance disposal technician who joined the case in late January.
Their objections to the vaccine fall into one of four categories, according to their complaint, including opposition to abortion and the use of fetal cell lines in pharmaceutical development, belief that body modification violates their religious principles, “direct, divine instruction not to receive the vaccine, or declining to inject “trace amounts of animal cells into one’s body.”
The primary protest centers around fetal stem cells, which may or may not have originated with an aborted pregnancy. Researchers cultivate these cells for generations, using their derivatives to create or test all manner of pharmaceutical products.
Simply put, no actual fetal cells were used in the development of any of the COVID-19 vaccines ― the cells in question were replicated by scientists, in labs, from tissue harvested previously.
The lawsuits don’t mention other vaccines these troops received either in their childhoods or during service ― the chicken pox, rubella and hepatitis A vaccines are all required ― that used descendent fetal cells in development. Nor do they mention the host of common medications that also use these stem cells, including Tylenol, Advil/Motrin, aspirin, Tums, Pepto Bismol, Benadryl, Sudafed and Claritin.
Also missing from the lawsuits are any new religious conversion, or simply the possibility that they were previously unaware of the role of replicated fetal stem cells in pharmaceutical development, that would explain why they never objected to any vaccines or medications before.
But there may be good reason for that. Many religious exemption applications have explained that the service members weren’t aware of the use of fetal stem cells prior to all of the controversy over the COVID-19 vaccine, but for the purposes of the Religious Freedom Restoration Act, they don’t have to explain themselves.
The law says that sincerely held religious beliefs are to be taken at face value.
“This whole thing is really unprecedented, right? Just because of the just incredibly political nature of, of all of it, from the virus to the vaccine to the mandates,” Marshall Griffin, a retired Coast Guard judge advocate who now practices private, told Military Times on Monday. “I mean, all of it is just fraught with ideological purpose, and suspected purpose.”
What do religions say about vaccines?
The lawsuit also fails to mention an established precedent regarding vaccines in religious traditions. The vast majority of the plaintiffs express some sort of Christian faith, though the vast majority of denominations have no formal ban on vaccination.
Jehovah’s Witnesses, who ban military service for their members, are probably the most prominent.
“Plaintiffs do not believe that staying true to their faith means exposing themselves or others to unnecessary risk,” according to the filing. “Quite the contrary, they view life — whether their own or that of their fellow servicemembers — as sacred and deserving protection.”
That includes protection from an adverse action while their exemptions are in process, a key part of the complaint, according to one of the attorneys on the lawsuit, which alleges that the plaintiffs have been removed from their jobs, flagged for promotion or otherwise hampered during the exemption process.
“All the things that that that, you know, that the Navy was doing to harass and punish sailors ― we basically wanted that to all stop,” Mike Berry, a former Marine judge advocate and now vice president at First Liberty Institute, which represents the Texas plaintiffs, told Military Times on Wednesday.
The judge agreed, issuing an injunction against discipline for the sailors on Jan. 3. The government has since filed a notice that it plans to appeal the decision.
The Texas lawsuit argues that the Navy Department is blanketly denying all religious requests, making the process a sham.
“It was just a bunch of window dressing, on what was really a foregone conclusion of ... 100% of religious exemption requests were going to be disapproved,” Berry said.
Military vaccine exemptions by the numbers
To date, no members of the Army or Space Force have received a religious exemption, though nine airmen and three Marines have been approved. The Navy on Wednesday announced it had granted one waiver to a member of the Individual Ready Reserve, a non-drilling service member, who would have to get vaccinated should he or she come on orders.
According data submitted in the Florida case on Feb. 8:
- The Air Force Department had received more than 12,000 religious exemption requests, denying over 3,000 of them and with roughly 2,000 still in adjudication.
- Total exemptions granted in the Air Force included about 1,500 temporary medical exemptions and 2,300 administrative waivers, which includes the nine religious approvals.
- In the Navy, none of more than 4,000 religious exemptions had been approved, but there were about 252 temporary and 11 permanent medical exemptions.
- The Navy granted another 500 administrative exemptions, including temporary waivers for sailors planning to leave the service or in the middle of a permanent change-of-station move, for example.
- The Marine Corps had fielded 3,500 religious waiver requests, granting three, in addition to about 250 medical waivers and 400 other administrative approvals.
- The Army reported about 1,300 religious requests, none of which have been approved, as well as six medical exemptions.
The services have declined to provide any details about the circumstances of the religious approvals, but both lawsuits allege that at least one of those Marines is due to leave service later this year.
Essentially, while the Marines applied for exemptions on religious grounds, they were already entitled to a much more straightforward administrative exemption for troops soon to leave service or not currently with their units, which is likely the reason they were approved.
The Texas lawsuit also states the plaintiffs are willing to continue to wear masks, social distance and take mandatory COVID-19 tests, rather than get vaccinated.
”Plaintiffs, therefore, do not object to safety measures that reduce the transmission of COVID-19 in the workplace,” it reads. “Indeed, Defendants employed such measures during the prior year before COVID-19 vaccines were made widely available.”
The Florida case, in a 187-page complaint, takes measures much further. In the filing, attorneys argue that the plaintiffs are facing criminal conviction and dishonorable discharge, which would strip them of any veterans benefits.
“Telling Plaintiffs they must accept or receive a shot they oppose according to their sincerely held religious beliefs, or face court martial, dishonorable discharge, and other life altering disciplinary measures, disgraces the sacrifices these heroes have made,” according to the lawsuit.
While powerful, that statement isn’t true. All of the military services have released vaccine refusal policies, none of them involving judicial or non-judicial charges for simply staying unvaccinated.
The prospect of dishonorable discharges has been a concern for some against vaccine mandates, but that type of discharge can only be handed down through a court-martial conviction.
The Florida case began a Navy and Marine Corps officer in 2021, but has soon ballooned to 36 plaintiffs from all military branches as well as some civilian Defense Department employees.
They have similar objections to their Texas counterparts, from opposition to abortion to concerns about modifying their bodies.
“Based on his Roman Catholic Christian faith and absolute opposition to abortion, he cannot accept a vaccine that has been manufactured, or whose efficacy has been tested and proved, using aborted fetal cells,” the Florida lawsuit alleges, on behalf of a Coast Guard pilot.
The Catholic church’s policy on derived fetal cells has been clear for decades: the sin of abortion is so far removed in pharmaceutical development that a Catholic is not violating any principles by getting vaccinated.
Pope Francis has called vaccination against COVID-19 “a moral obligation” and “an act of love.”
“Frequently people let themselves be influenced by the ideology of the moment, often bolstered by baseless information or poorly documented facts,” he said in January, adding that ”vaccines are not a magical means of healing, yet surely they represent, in addition to other treatments that need to be developed, the most reasonable solution for the prevention of the disease.”
Another claimant, a Muslim Marine Corps captain, who said that his “religious beliefs that require him to abstain from participation in that which is haram — forbidden— including the destruction and commoditization of innocent human life as exemplified by the use of human fetal cell lines derived from abortions,” according to the lawsuit.
But Islamic tradition does not discourage vaccination, and doesn’t forbid abortion before 17 weeks’ gestation, with even more leeway if the health of the mother is in jeopardy or if there are life-threatening fetal abnormalities.
Just because the plaintiffs identify as a member of one religion or another doesn’t mean they need to follow every tradition, according to Griffin, the former Coast Guard lawyer, nor would they need to justify why they are religiously opposed to the COVID-19 vaccine in particular.
“Under the law, there’s no requirement that you adhere to a major or even recognized faith tradition,” he said.
Other plaintiffs focus not on the abortion issue, but on several Bible passages that refer to the body as a temple.
“Plaintiffs sincerely held religious beliefs that their bodies are temples of the Holy Spirit and that they are to glorify God with their bodies lays the foundation for everything they do, consume, or inject into their bodies,” according to the Florida lawsuit. “From this foundation they make studied and reasonable decisions about what is good and what is not good or may not be good for their bodies.”
None of the plaintiffs clarify whether they engage in any other behavior that might be seen as a desecration of that temple, whether it’s alcohol, drugs, unprotected sex or ― in the case of the Old Testament ― tattoos and piercings.
And both lawsuits include arguments that the plaintiffs prayed on the issue and came to the conclusion that vaccination would violate their principles.
As part of the exemption process, service members are required to meet with a chaplain to work through their concerns. The lawsuits do not offer details from these meetings, nor do they state that the plaintiffs consulted with experts in their own religious communities before making their decisions to refuse vaccination.
The Religious Freedom Restoration Act sets a low bar for proving one’s religious beliefs, in that if someone states them, they are assumed to be sincere.
“It is a danger of, you know, the government saying, ‘Well, hey, here’s what your faith tradition teaches, you should follow that,’ " Griffin said. “That’s really prohibited by the by the courts considering these types of cases. And they recognize that there’s almost a presumption of belief. The government really can’t scrutinize belief very far.”
And in fact, he said, the exemption process is fraught in and of itself.
Religious freedom laws are “set up to avoid a circumstance where the Navy, or the military or the government, is doing a faith test, to determine whether or not you really believe what you’re supposed to believe,” Griffin said. “It’s just such an inappropriate position for the government to be in.”
Staver, the attorney for the Florida plaintiffs, said his clients have shared their exemption rejection letters, which do not detail specifically why their requests weren’t approved.
“Yes, many of them have brought that and it’s a rubber stamp rejection,” he said.
The Florida case also expands the arguments past the religious exemption process, citing a handful of other arguments made by COVID-19 vaccine detractors. They include the small risk of myocarditis, which has anecdotally occurred in 1,626 U.S. residents out of more than 200 million fully vaccinated, with the highest risk in men under 24.
Challenging the mandate
The complaint also brings up the issue of Food and Drug Administration licensure. In late August, Pfizer’s vaccine received full approval under the brand name Comirnaty. While vials contain the same formula, some have made the argument that because providers are still giving the emergency-use Pfizer version, no one can be compelled to get vaccinated until the Comirnaty-labeled vials are in circulation.
“Our lawsuit is certainly centered on religious exemption, but our lawsuit is broader than that to block the mandate in general of a non-FDA approved product,” Staver said.
DoD, for its part, settled its own policy with a memo from Assistant Defense Secretary for Health Affairs Terry Adirim last fall.
“Per FDA guidance, these two vaccines are ‘interchangeable’ and DoD health care providers should ‘use doses distributed under the EUA to administer the vaccination series as if the doses were the licensed vaccine,’ " she wrote.
The Florida filing also spends much more time on the biographies of the complainants. While in Texas, the sailors offered descriptions of their jobs, in Florida, the biographical information goes into training, deployments and expertise, attempting to make the case that their involuntary discharges would be a huge loss.
“The judge recognized that when he granted our [temporary restraining order] on Feb. 2 because toward the end, he said the public has an interest also in this because these are courageous skilled, individuals who are not easily replaceable,” Staver said.
The question is, what’s the bigger risk to readiness: Discharging skilled, expensively trained service members for refusing to get vaccinated, or allowing them to continue serving with the potential to become infected with COVID-19, experience serious illness and potentially long-lasting side effects?
Challenges piling up
Other service members have struck out on their own to fight the mandate. On Tuesday, a federal judge granted an injunction against discipline of an Air Force officer whose religious exemption had been denied.
There’s a case to be made for turning these lawsuits into class action matters, Staver said, so that individual service members don’t have to sue or just another case.
“Otherwise, the courts are going to be flooded with thousands of lawsuits,” he said. “And we’ll be back week after week.”
Staver believes the Florida case case has a good chance of making it to the Supreme Court, potentially invalidating all government mandates for COVID-19 vaccination.
For the Texas case, it’s more likely those sailors will receive religious exemptions, but that they won’t necessarily change the way the military mandates vaccines or reviews exemptions.
“I don’t think that the precedent is going to be that big of one,” Griffin, the former Coast Guard lawyer, said. “The population of people seeking religious accommodations now is fairly small.”
The Texas case has smaller aspirations purposely, Berry said.
“We took a very intentional approach of maintaining a laser-like focus on religious liberty, because we believe that that is the strongest legal basis,” he said. “The free exercise of religion, even in the military, it triggers the strongest protection available in the law.”
But it may not take a lawsuit for the issue to change the environment when it comes to mandatory vaccination.
“[Many] didn’t even know that there was a religious exemption option, because they had never been informed of it,” Staver said. “They had been told to get certain vaccines or other things without even be notified of a religious objection.”
What’s clear is that the COVID-19 has broken open a bit of a wormhole in the military. For a population accustomed to having very little power over their personal decisions ― where they live, what they wear, how they cut their hair, how much they weigh ― the opportunity to have some control over their medical decisions is an enormous discovery.
Meghann Myers is the Pentagon bureau chief at Military Times. She covers operations, policy, personnel, leadership and other issues affecting service members. Follow on Twitter @Meghann_MT