Liberty Counsel’s Military Case Differs From SCOTUS Ruling

Mar 28, 2022

TAMPA, FL — Liberty Counsel has filed a supplemental authority with the Eleventh Circuit Court of Appeals and also requested oral argument or supplemental briefing regarding the preliminary injunction that federal Judge Steven Merryday issued for two service members in the Navy SEAL 1 v. Austin case. On Friday, the U.S. Supreme Court granted a partial stay, that focused solely on deployment, in the case of Navy SEALS 1-26 v. Austin. Although the names of the cases can be confusing, Liberty Counsel does not represent the case on which the Supreme Court ruled last Friday but does represent about 30 plaintiffs from all military branches seeking class certification in Navy SEAL 1 v. Austin. 

Judge Merryday previously granted the preliminary injunction for the Marine Corps Lieutenant Colonel and Navy Command Surface Warfare Officer who were denied religious exemptions from the COVID shot mandate. The court based its ruling on the federal Religious Freedom Restoration Act (RFRA), finding that the Marines and the Navy failed to demonstrate “to the individualized person” two of RFRA’s essential requirements on government action that burdens a person’s sincere religious belief – a compelling interest and the least restrictive means.

In its order last Friday, the Supreme Court issued a partial stay of the preliminary injunction in Navy SEALS 1-26 only “insofar as it precludes the Navy from considering respondents’ vaccination status in making deployment, assignment, and other operational decisions.” 

In contrast, the preliminary injunction in Liberty Counsel’s case, Navy SEAL 1 v. Austin, enjoins the Department of Defense (DOD) and the respective military branches “(1) from enforcing against Navy Commander and Lieutenant Colonel 2 any order or regulation requiring COVID-19 vaccination and (2) from any adverse or retaliatory action against Navy Commander and Lieutenant Colonel 2 as a result of, arising from, or in conjunction with Navy Commander’s or Lieutenant Colonel 2’s requesting a religious exemption, appealing the denial of a request for a religious exemption, requesting reconsideration of the denial of a religious exemption, or pursuing this action or any other action for relief under RFRA or the First Amendment.” 

As Judge Merryday noted, “[t]he operative language of the preliminary injunction is direct and specific,” and “narrowly and specifically protects Navy Commander and Lieutenant Colonel 2 (1) from enforcement of an order to either accept vaccination or undergo discipline, including possible separation from service, and (2) from any adverse action that is retaliatory.” Indeed, “[a]ny interpretation to the contrary is wrong.” The defendants “remain at liberty to issue commands, assignments, orders, and the like in the normal course of business.” The “injunction remains indifferent to that non-retaliatory exercise of command authority.” 

This preliminary injunction is more narrow than the Texas preliminary injunction which the Supreme Court considered, as it limits defendants from enforcement of an order to either accept vaccination or undergo discipline (which was not challenged before the Supreme Court or in Liberty Counsel’s case before the Court of Appeals), and from taking retaliatory action on the basis of a RFRA claim. 

Liberty Counsel also filed a supplemental authority last week to the Eleventh Circuit Court of Appeals and to the District Court based on the U.S. Supreme Court’s decision in Ramirez v. Collier that a man on death row in Texas can have his pastor touch him and pray out loud while he is being executed. 

Liberty Counsel Founder and Chairman Mat Staver said, “The Supreme Court’s decision does not affect the preliminary injunction issued in Liberty Counsel’s case of Navy SEAL 1 v. Austin. We continue to seek relief for these plaintiffs as well as the entire class representing members of all branches of the military. Justice requires vindication of their religious free exercise protected under the Religious Freedom Restoration Act.” 

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