Judge Blocks Navy's Discipline of SEALs for Refusing the COVID-19 Vaccine

Greek special forces and U.S. Navy Seals
Greek special forces and U.S. Navy Seals amphibious assault a beach during Sarisa 16, an annual Greek exercise, near Thessaloniki, Greece, Sept. 19, 2016. (U.S. Army photo by Staff Sgt. Marcus Fichtl)

A federal judge has ordered the Navy and Defense Department to halt disciplinary procedures against 35 members of the service's special operations community for refusing to take the COVID-19 vaccine -- a move that could complicate the Pentagon's immunization mandate.

U.S. District Court Judge Reed O'Connor, with the Northern District of Texas in Fort Worth, ruled Monday that the DoD has violated the sailors' constitutional right to refuse the vaccine based on their religious beliefs.

According to the order from Reed, "there is no military exclusion from our Constitution."

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"The COVID-19 pandemic provides the government no license to abrogate those freedoms. There is no COVID-19 exception to the First Amendment," O'Connor wrote in a 26-page order.

The 35 sailors are not named in the lawsuit, citing privacy and a threat to national and operational security. They include 26 enlisted or chief warrant Navy Sea, Air and Land, or SEAL, members, five enlisted special warfare combatant craft crew members, three enlisted Navy divers and an enlisted explosive ordnance disposal technician.

The plaintiffs objected to any vaccines that were developed from aborted fetal cell lines or that "modified" their bodies -- "an affront to the Creator," they wrote in their suit filed in November.

While the vaccines were developed with cell lines descended from fetuses aborted in the 1970s and 1980s, they contain no aborted fetal tissue.

The plaintiffs also argued they have received "direct, divine instruction not to receive the vaccine" and oppose "injecting trace amounts of animal cells into one's body."

While the majority of the plaintiffs did not address the fact that the Pentagon requires service members to receive numerous vaccines, including the anthrax vaccine for special operators in some environments, one sailor said he experienced negative side effects from a previous vaccination and "came to regret" it, seeing vaccines as a "defilement of his body."

"Through prayer and reflection, this plaintiff has determined that receiving a COVID-19 vaccine similarly would defile his body," according to the lawsuit.

In the complaint, plaintiffs attorneys also cited a Military.com report on a rare side effect of the COVID-19 mRNA vaccine -- heart inflammation known as myocarditis and pericarditis -- as a reason for their clients not wanting the vaccine.

The complication also can occur as the result of a COVID-19 infection.

While acknowledging that COVID-19 has killed more than 80 service members since the beginning of the pandemic, O'Connor said the court "does not make light of COVID-19's impact on the military."

But, he said, the Navy's religious exemption process has been "theatre" to date, noting that no exemptions have 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."

The sailors, who hail from Catholic, Eastern Orthodox and Protestant Christian backgrounds, filed their lawsuit through the First Liberty Institute, a nonprofit that serves to defend religious freedom.

Their attorney, Michael Berry, is a former Marine Corps judge advocate general who deployed to Afghanistan in 2008 and continues to serve in the Marine Corps Reserve, according to the institute's website.

"Forcing a service member to choose between their faith and serving their country is abhorrent to the Constitution and America's values," Berry said in a statement released Monday. "Punishing SEALs for simply asking for a religious accommodation is purely vindictive and punitive."

No major religions oppose COVID-19 vaccinations, including the Roman Catholic Church, whose leader, Pope Francis, has called receiving it an "act of love" that is consistent with the faith.

Leaders of the Greek Orthodox Archdiocese of America said in September "there is no exemption in the Orthodox Church for Her faithful from any vaccination for religious reasons."

And leaders in the Baptist faith, the largest Protestant denomination in the U.S., have said they support vaccination but oppose mandates. Danny Akin, president of the Southeastern Baptist Theological Seminary, told the Baptist Press in September that he believes "getting vaccinated is in the best interest of national health."

"However, an emergency mandate through regulatory action by the Department of Labor is the government trespassing on civil liberties," Akin said, referring to President Joe Biden's mandate for federal workers, contractors and private employers.

The lawsuit is one of several filed that have been filed against Biden, Defense Secretary Lloyd Austin, Navy Secretary Carlos Del Toro and the Defense Department seeking to halt the vaccine mandate, which was ordered by Austin in August.

More than 1.9 million U.S. service members, including members of the Reserve and National Guard, have received vaccines for COVID-19. At least 96% of the active-duty Navy, Army and Air Force were fully vaccinated by their services' respective deadlines. As of Dec. 22, 95% of active-duty Marines had received at least one dose.

The services have processes for requesting medical and religious exemptions. To date, a few hundred have received medical exemptions, mainly with the recommendations of a physician, and no religious exemptions have been approved.

The Air Force began discharging personnel after its Nov. 2 deadline passed, with 27 airmen dismissed the week of the deadline. The Marine Corps has separated 206 Marines for refusing the vaccine.

There have been 261,504 cases of COVID-19 among U.S. service members since the beginning of the pandemic in February 2020 and 82 deaths.

During a press conference at the Pentagon on Tuesday, spokesman John Kirby said he could not comment specifically on the order, given that it is part of ongoing litigation.

"We are aware, of course, and we are reviewing it and discussing it with the Department of Justice to determine what options are available to us going forward," Kirby said.

O'Connor was nominated to the federal bench in June 2007 by President George W. Bush. He has a history of rulings against Democratic policies and mandates, the most notable occurring in late 2018 when he declared the Affordable Care Act unconstitutional.

That ruling was upheld by the United States Court of Appeals for the Fifth Circuit but was reversed by the U.S. Supreme Court in a 7-2 decision, dissented only by Associate Justices Samuel Alito and Neil Gorsuch.

-- Patricia Kime can be reached at Patricia.Kime@Military.com. Follow her on Twitter @patriciakime.

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