The Department of Defense has filed an emergency appeal with the U.S. Supreme Court to intervene in a case that effectively has blocked the Navy's authority to discipline members of its special operations community who refuse the COVID-19 vaccine.
The Biden administration asked the court Monday to weigh in on a federal district court decision that suspended the Navy's ability to punish the 35 sailors, who have refused the vaccination citing religious objections.
Last week, the Fifth Circuit Court of Appeals upheld the order, prompting the government to take the matter to the Supreme Court, arguing that a portion of the ruling oversteps the judiciary's bounds and usurps military authority.
The DoD has asked the court to consider Judge Reed O'Connor's injunction that bars the Navy from designating the sailors as non-deployable, restricting them from participating in training and operations.
"In response to that extraordinary and unprecedented intrusion into core military affairs, the government [has] moved for a partial stay pending appeal," Solicitor General Elizabeth Prelogar wrote in the request.
"The Navy has an extraordinarily compelling interest in ensuring that the service members who perform those missions are as physically and medically prepared as possible. That includes vaccinating them against COVID-19, which is the least restrictive means of achieving that interest," Prelogar wrote.
O'Connor, of the Northern District of Texas, Fort Worth, ordered the service in January to halt all disciplinary procedures against 35 members of the Naval Special Warfare Command who sought relief from the DoD's COVID-19 vaccine mandate.
The DoD is not asking for emergency relief from the prohibition on disciplining or discharging the service members involved in the suit; it simply is seeking to factor in vaccination status when determining who is deployable or non-deployable, especially in units that "operate in small teams and close quarters for extended periods."
Defense Secretary Lloyd Austin announced in August that all service members would be required to get the COVID-19 vaccine or seek a medical or religious exemption. At the time, the Navy noted that sailors may be reassigned if they refused the order and didn’t get an exemption.
The deadline for sailors at Naval Special Warfare Command for getting the vaccine or filing a request for exception was Oct. 17.
The 35 plaintiffs, who are not named in the lawsuit, object to any vaccines developed using aborted fetal cell lines or that modify their bodies as "an affront to the Creator," they wrote in their suit, filed in November.
They also argued they were told that their requests for religious accommodations would be denied and the service was not seriously considering any requests for such waivers.
And, they said, the vaccination requirement violates the Religious Freedom Restoration Act because it does not sufficiently accommodate religious objectors.
O'Connor agreed, writing that "there is no military exclusion from our Constitution."
"The COVID-19 pandemic provides the government no license to abrogate those freedoms. There is no COVID-19 exception to the First Amendment," he wrote in a 26-page order.
He added that the Navy's religious exemption process has been "theatre" to date, noting that, as of his ruling, no exemptions had been granted.
"The facts overwhelmingly indicate that the Navy will deny the religious accommodations," O'Connor wrote. "The Navy has, to date, never granted a religious accommodation request for the COVID-19 vaccine. In fact, in the past seven years, the Navy has never granted a single religious exemption for any vaccine."
Since the ruling, the Navy has granted one request for religious exemption to a member of the Individual Ready Reserve.
Military service members are required to get nine vaccines, with exceptions for medical and military reasons. An additional eight are required for troops who may be exposed to illnesses in endemic regions or who have at-risk circumstances.
Among the vaccines required for military services is the measles, mumps and rubella, or MMR, vaccine, which includes a weakened version of the rubella virus cultivated inside fetal cells.
The Pfizer and Moderna COVID-19 vaccines did not use fetal cell lines for development or production. Only the Johnson & Johnson vaccine is made using fetal cells.
In a sworn declaration in the case, Vice Chief of Naval Operations Adm. William Lescher argued that a COVID-19 case among even one member of a SEAL team could jeopardize a mission.
"Sending ships into combat without maximizing the crew's odds of success, such as would be the case with ship deficiencies in ordnance, radar, working weapons or the means to reliably accomplish the mission, is dereliction of duty. The same applies to ordering unvaccinated personnel into an environment in which they endanger their lives, the lives of others and compromise accomplishment of essential missions," Lescher wrote.
A U.S. Supreme Court decision in the case may affect similar cases filed against the Defense Department over the vaccine requirement, including a potential class-action case filed by 30 unnamed officers and service members seeking relief from the order.
A federal judge in Florida ruled in that case in February that the Navy cannot remove one of the plaintiffs, a destroyer commander, for refusing the COVID-19 vaccine.
Judge Steven Merryday barred the Navy from reassigning or demoting the officer, who commands a ship in Destroyer Squadron 26, for the sake of "preservation of the status quo" while the case is being decided, he wrote.
Nearly 2 million U.S. service members, including members of the Reserve and National Guard, have received vaccines against COVID-19.
Each service has received at least 3,250 requests for religious exemption: The Army has not granted any; the Marine Corps has approved six -- all of whom already had plans to leave or retire from the service; the Air Force has granted 19.
Since their services' vaccine deadlines have passed, 205 airmen, 419 sailors and 873 Marines have been discharged for refusing the vaccine.
The Army has not separated anyone for refusal, but it has relieved six leaders and issued 3,183 general officer letters of reprimand to refusers.
The military services have logged 388,151 cases of COVID-19 among members since the beginning of the pandemic in February 2020. Ninety-three service members have died.
The Supreme Court directed attorneys for the SEALs to respond to the Navy's request by 4 p.m. March 14.
-- Patricia Kime can be reached at Patricia.Kime@Military.com. Follow her on Twitter @patriciakime.