Military Under a Microscope and Federal Employees Entitled to Religious Exemption

Nov 22, 2021

Today in our Navy SEAL 1 v. Biden case, federal judge Steven Merryday ordered each branch of the military to file a detailed report every 14 days beginning January 7, 2022. The order also stated that the federal executive orders regarding federal employees and civilian contractors expressly require religious exemption.

Judge Merryday wrote that the military plaintiffs’ claim that the accommodation process is a ruse are “quite plausible” under the federal Religious Freedom Restoration Act because the reports filed by the military branches thus far revealed not one of the 16,643 requests for religious accommodation have been granted and hundreds have been denied at the first stage, including one denied at the appeal stage.

The order states more data will be helpful: “The importance of a person’s right to religious liberty, protected in the Free Exercise Clause of the First Amendment to the Constitution and the explicit implementing commands of RFRA, commends deferring the resolution of the service members’ motion for preliminary injunction pending the accumulation and reporting of additional data and the resumption—with the benefit of more complete and telling data—of the hearing on the motion for preliminary injunction.”

Judge Merryday ordered the various military branches to file every 14 days, beginning January 7, 2022, a notice providing separately for each branch of the military: (1) total number of religious exemption requests, the aggregate number of denials, denials where belief found sincere, appeals pending, denials where appeal time has passed and number of successful appeals, (2) total number of medical exemptions, (3) other exemptions granted and (4) number of disciplinary proceedings and actions taken after denial in an appeal.

Regarding the Emergency Use Authorization count, Judge Merryday ruled there is no private cause of action under 21 USC 360bbb-3(e)(1)(A) (the general right to refuse provision) and no military member can likely prevail under 10 USC 1107 because the military says it is using Pfizer’s EUA but complying with the FDA license. This representation by the military is suspect as the FDA, CDC, NIH and Pfizer all say that Comirnaty is not available. The military argued that even though Comirnaty is not available, it is using the Pfizer EUA product, which the Department of Justice argued is the same substance as Comirnaty and thus complies with the FDA license. The court completely ignored the clear legal distinction between Pfizer’s EUA and BioNTech’s Comirnaty.

Judge Merryday ruled there was no qualified federal employee (without any reference to the submitted amended complaint) or civilian contractor employee because Executive Orders 14042 and 14043 “expressly require religious exemption, and federal guidance commits to the employing federal contractor and to the employing federal agency, respectively, the discretion to resolve an employee’s request for a religious exemption.”

The major takeaways from Judge Merryday’s order include the following: (1) The military branches must file detailed reports every 14 days beginning January 7, 2022, because the Plaintiffs’ claim under RFRA that the process is a ruse which will result in the denial of religious accommodation requests is “quite plausible” and thus injunctive relief could still issue depending on the continual reporting results; and (2) The Executive Orders 14042 and 14043 “expressly require religious exemption.”

Liberty Counsel Founder and Chairman Mat Staver said: “Although the court withheld an injunction today, the military will now be under a microscope to report the status and disposition of all religious exemption requests. The military has not granted any of the 16,643 requests. The military now has a clear choice—voluntarily accommodate those with sincere religious beliefs or be ordered by the court to accommodate sincere religious beliefs. Federal employers and civilian contractor employers must hear the message from this court loud and clear—the federal executive orders expressly require religious exemption.”

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