OPINION

COVID-19 mandates fall apart: Navy SEALs denied religious exemption no longer

The Navy can no more question the spiritual devotion of these SEALs than it can question their patriotism or their warfighting abilities.

Mike Berry
Opinion contributor

There is no COVID-19 exception to the First Amendment,” wrote U.S. District Court Judge Reed O’Connor. His words, directed to the United States Navy, should remind all Americans – and especially those in positions of authority – that the Constitution refuses to bend to authoritarian impulses. 

Earlier this month, O’Connor issued a preliminary injunction against the U.S. Navy, preventing it from taking any further action against the 35 Navy SEALs and Special Warfare service members represented by the First Liberty Institute. It also provides hope for the thousands of members of the military who bravely raised religious objections to receiving the vaccine knowing full well their fates had long been sealed.

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Those service members now have a roadmap for how to challenge the unjust policies and procedures – described by O’Connor as “theater” – the Department of Defense has used to trample upon our service members’ constitutional rights.

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While it is true our service members give up much to protect our freedoms, as O’Connor underscored, “we do not ask them to lay aside their citizenry and give up the very rights they have sworn to protect.” 

That includes when it comes to the vaccines. Thus far, the Navy has granted hundreds of medical and administrative exemptions to sailors. Ironically, there is even an exemption available for sailors who are participating in clinical vaccine trials that use placebos. In other words, sailors can be exempt from the vaccine if they participate a clinical trial during which they remain unvaccinated. 

Mike Berry in Plano, Texas, in October 2018.

In contrast, the Navy has been entirely unaccommodating to the SEALs and thousands of other service members whose sincere religious beliefs forbid them from receiving the vaccine.

The Navy SEALs First Liberty represents Christians of various denominations. Each presented evidence and arguments to the court explaining the nature of their religious objection to the COVID vaccine. Some earnestly prayed to God for guidance and believe receiving the vaccine is a mortal sin. Some object because of the vaccine’s well-documented ties to the use of aborted fetal cells during its development.  

I too, as a military reserve officer, have sought an accommodation due to my religious objection to the vaccine. Although I am still awaiting a response, I do not expect to be the first and only approved religious accommodation. 

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I have 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 war-fighting abilities. 

Yet the Navy has issued zero accommodations for those asserting a religious objection to the COVID vaccine. Zero. The Navy, according to O’Connor, “merely rubber stamps each denial.” Forcing a service member to choose between their faith and serving their country is abhorrent to the Constitution and America’s values. And punishing him or her for simply requesting a religious accommodation is purely vindictive and unlawful. 

No attempt to accommodate SEALs

There was a time when our military found a way to accommodate service members’ religious beliefs while allowing them to serve. During World War II, the Army tried to court-martial Private Desmond Doss because he refused to carry a weapon due to his religious beliefs that taking life is wrong. The Army came to its senses and allowed Doss to serve as a non-combatant medic. Doss famously went on to earn the Medal of Honor for his heroic feats during the Battle of Okinawa, during which he saved more than 70 lives. If the military can find a way to accommodate service member religious beliefs during a world war, it can surely do so today.

The dozens of Navy SEALs and Special Warfare members First Liberty represents collectively have more than 350 years of military experience and more than 100 combat deployments. These are exactly the kinds of elite warriors our nation needs.  And yet they have each suffered real harm because of their religious beliefs. 

Some were ordered to remove their special warfare device – SEALs wear the famed the “Trident” – which indicates they are no longer part of the special warfare community. Others were warned that even if their religious accommodation were somehow miraculously approved, they would still be kicked out of the SEALs in disgrace. The Navy also threatened to recoup the expenses invested in them to make them the elite warriors that they are. 

SEAL candidates participate in "surf immersion" during Basic Underwater Demolition/SEAL (BUD/S) training at the Naval Special Warfare (NSW) Center in Coronado, California, on May 4, 2020.

At the preliminary injunction hearing last month, one of our SEAL clients who sustained a traumatic brain injury while serving our nation took the stand. He testified that the Navy sought to prevent his attendance at a traumatic brain injury clinic because he refused the vaccine. He offered to travel at his own expense, in his own vehicle, to a clinic that was indifferent as to his vaccination status. It defies common decency to deprive a service member of necessary medical treatment for injuries sustained in the line of duty. That is no way to defend a nation or run a military. 

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Pandemic or no, the government – including our military – has no license to abrogate the freedoms enshrined in our law and Constitution. The men who wrote the First Amendment were no strangers to plague, famine or war. They understood that the worst tyrannies are those imposed supposedly “for the greater good.” 

Until now, none of the lawsuits challenging the military’s vaccine mandate have been successful. O’Connor’s ruling is a beacon of hope that paves the way for our men and women in uniform to continue serving with their religious liberty intact. For that, every freedom-loving American should be rightly proud. In the meantime, let us hope that the Department of Defense comes to its senses and rights this ship. 

Mike Berry is general counsel at First Liberty Institute, and a former active duty U.S. Marine Corps officer. To learn more, please visit www.firstliberty.org.