Court Rips DOD in Military Case

Mar 3, 2022

TAMPA, FL – Judge Steven Merryday has denied the U.S. Department of Defense’s (DOD) request for the federal district court to stay the preliminary injunction granted for two of Liberty Counsel’s plaintiffs from the shot mandates in Navy SEAL 1 v. Austin. Judge Merryday also scheduled a new hearing on the motion to stay for Thursday, March 10 at 10 a.m. 

The DOD waited ten days after the February 18 ruling to file an appeal and then filed an emergency motion February 28 seeking to stay the lower court’s preliminary injunction. The DOD threatened to file the motion with the U.S. 11th Court of Appeals. 

Liberty Counsel represents plaintiffs from all branches of the military who were denied religious exemptions from the COVID shot mandate in Navy SEAL 1 v. Austin. 

In his response Judge Merryday wrote, “The second portion of the defendants’ motion advances the ‘judicial overstepping’ claim. In particular, the second portion claims that two footnotes in the preliminary injunction somehow ‘discount the effect of refusers on good order and discipline in the military’ and ‘by second-guessing the scientific and military evidence that vaccination is the most effective means to protect the health and safety of the force.’ (The term ‘refusers’ is a tellingly offensive term that the defendants must employ no further in this court. A RFRA [Religious Freedom Restoration Act] claimant is not a ‘refuser,’ not an outcast subject to shunning).”

Judge Merryday continued: “A review of the defendants’ motion reveals that the defendants persistently and resolutely cling to the belief that their accustomed and unfettered command discretion need not yield — on the narrow and specific question of the free exercise of religion — to the statutory command of RFRA or to an order under RFRA from a district court (actually, at this moment, orders from several district courts and a circuit court of appeals), the forum selected by Congress and enacted in RFRA to resolve a dispute under RFRA (in other words, Congress and the President, not the district court, chose the district court as the proper forum for service members to assert the RFRA claim asserted in this action).” 

The court concluded the 20-page response by writing, “In finalizing a plan, the district judge must consider the full array of options available for conditional and final class certification, along with an array of other formidable issues. Mindful of these and other considerations and mindful both of the public interest and the interest of the litigants (not necessarily divergent in many or most respects), this action has proceeded expeditiously but carefully (with simultaneous mediation underway before the magistrate judge). Unless ordered otherwise, the district judge will continue to proceed apace to resolve the organizational, legal, and remedial complexities (assuming some successful claims) in accord with governing law.” 

Yesterday, Liberty Counsel asked federal Judge Merryday for a temporary restraining order on behalf of another plaintiff, a United States Marine Corps Captain who needed relief from the shot mandate before 2 p.m. ET today or faces life-altering discipline. The USMC Captain whose religious convictions prevent him from receiving the COVID shot had been ordered to receive the injection by today, March 3 at 3:00 p.m. or be in violation of “a lawful order” subjecting him “to punitive and/or administrative action.” 

Instead, the DOD extended the captain’s orders to receive the shot through March 24, 2022. In the order the DOD stated, “There is no emergency, and the Court need not issue any ruling on the TRO pending full briefing of the motion for a preliminary injunction.” 

Therefore, apparently if the military can claim “no emergency” for one of Liberty Counsel’s plaintiffs, then there is really not an urgent need for any service members to get the shots. 

Liberty Counsel Founder and Chairman Mat Staver said, “The Department of Defense continues its arrogant stance toward a court of law, acting as if it is above the law. Every military branch has violated the Constitution and the federal Religious Freedom Restoration Act with this unlawful COVID shot mandate. We look forward to next week’s hearing to prove that our service members do not have to choose between their Christian convictions and their service to our nation.” 

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