U.S. Supreme C ourt

Supreme Court allows Navy to consider SEALs’ vaccine statuses; plaintiffs 'treated shabbily,' dissent says

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The U.S. Supreme Court last week allowed the Navy to consider a vaccine refusal by 35 Special Warfare personnel when making decisions on their deployment and assignment.

In a March 25 order, the high court stayed part of a district court injunction that applied to the 35 plaintiffs who sued, including 26 Navy SEALs, report Law.com, the New York Times and the Washington Post.

The Navy can consider vaccine statuses when making operational decisions during the appeals process, according to the Supreme Court’s order. The plaintiffs are still protected, however, from discharge or discipline during that time.

In a concurrence, Justice Brett Kavanaugh said he agreed with the Supreme Court’s stay “for a simple overarching reason: 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.”

Kavanaugh said the district court relied on the Religious Freedom Restoration Act in blocking action against the SEALs.

“But even accepting that RFRA applies in this particular military context, RFRA does not justify judicial intrusion into military affairs in this case,” Kavanaugh wrote. “That is because 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. And no less restrictive means would satisfy that interest in this context.”

Justices Samuel Alito Jr., Neil Gorsuch and Clarence Thomas dissented. Alito explained his reasoning in a dissent joined by Gorsuch.

Alito said the court “does a great injustice” to the 35 respondents “who have volunteered to undertake demanding and hazardous duties to defend our country. These individuals appear to have been treated shabbily by the Navy.”

Alito said the Navy set up a procedure for obtaining religious exemptions from vaccines that included no fewer than 50 steps. By mid-February, more than 4,000 exemption requests were submitted, but “not a single one had been approved” by the time that the case was filed.

Alito said he agreed that the government had a compelling interest in preventing COVID-19 infections—to allow it to carry out vital missions and to protect the health of its Navy personnel.

“But the Navy’s summary rejection of respondents’ requests for religious exemptions was by no means the least restrictive means of furthering those interests,” Alito wrote.

Alito said he would support a narrower order that allowed the government to select Special Warfare service members who are sent on missions in which there is a special need to limit the risk of COVID-19 infections.

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