Defense Department Seeks Stay Against LC’s Military Plaintiffs

Mar 1, 2022

TAMPA, FL – The U.S. Department of Defense (DOD) is shamefully reacting to a favorable ruling Liberty Counsel received in the Navy SEAL 1 v. Austin case. The DOD waited ten days after the February 18 ruling to file an appeal and then filed an emergency motion yesterday seeking to stay the lower court’s preliminary injunction. 

The DOD is asking Judge Steven Merryday to reconsider his ruling and has requested a decision by March 2. If the judge does not grant the Navy’s request, the DOD has threatened to file the motion with the U.S. Court of Appeals at the Eleventh Circuit. 

In the court’s decision issued February 18, Judge Merryday extended his previous restraining order into a preliminary injunction. This ruling means that the military is not able to take any adverse action against two Liberty Counsel plaintiffs, a Navy warship commander and a Marine lieutenant colonel, because of their refusal to take COVID-19 shots based on religious beliefs. The court agreed that the military’s implementation of the federal government’s COVID-19 shot mandate violated their rights of conscience and free exercise of religion.

The DOD’s request for the stay reads in part:

“The Court’s Order prevents the Navy and Marine Corps from removing an officer from – and requires the Marine Corps to place an officer in  commanding officer billets who the military has deemed unfit for command. Moreover, the Order prohibits the military from requiring these service members to receive the COVID-19 vaccine at all, even as a condition of deployment and assignment to command an operational unit. The Order is an extraordinary intrusion upon the inner workings of the military that presents a direct and imminent threat to national security during a global military crisis, and it indefinitely sidelines a Navy warship.”

“By forcing the Navy to keep in place a commander of a destroyer who has lost the trust of his superior officers and the Navy at large, this Order effectively places a multi-billion-dollar guided missile destroyer out of commission. … For example, if it becomes necessary to deploy an East Coast-based surface ship in response to global events in Ukraine (or elsewhere), the Navy will not deploy the Commander’s vessel. In this way, the Court’s order will have a wide-ranging impact on Navy operations and national security.”

The DOD made multiple assertions in its request to the court, including:

  • That the court did not have the authority to enjoin the military from making decisions about assignments.
  • That the military has a compelling interest in making sure its force is vaccinated.
  • That the military is making individualized determinations as to each military service member who has requested a religious exemption.
  • That the military would suffer irreparable harm by being forced to accommodate those with religious objections to the COVID injection.
  • That the preliminary injunction creates a risk because it allows unvaccinated service members to remain in position.
  • That allowing religious objectors to defy direct orders interferes with good order and discipline.

The DOD’s filing is despicable. Judge Merryday ruled that the DOD and the military are violating the federal Religious Freedom Restoration Act. The military under Joe Biden considers people with religious beliefs against the COVID shots to be “unfit” for service. This is shocking coming from an institution whose mission is to defend the Constitution of the United States.

In a separate case, the U.S. Court of Appeals for the Fifth Circuit denied the DOD’s similar request on February 28. The court issued a unanimous, 29-page opinion, ruled that the DOD’s motion lacks merit.

Liberty Counsel Founder and Chairman Mat Staver said, “It is sad that the Department of Defense continues its arrogant stance that it is above the law. The military is not a law unto itself. The Constitution and the federal Religious Freedom Restoration Act rules supreme.”

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