Rescinding Military COVID Shot Mandate Is Not Enough

Dec 8, 2022

A draft of the National Defense Authorization Act (NDAA), an $858 billion bill that funds national defense that passed the House today by a vote of 350-80, reveals that the Biden administration’s COVID shot mandate for military members will be repealed if it passes. However, Liberty Counsel will continue pursuing permanent injunctions against the Defense of Defense’s (DOD) flawed religious accommodation policy for immunizations, to prevent the DOD from reinstituting a similar COVID-19 shot mandate, and to undo the adverse treatment against service members who filed religious accommodation requests. 

The U.S. House of Representatives voted to rescind the Pentagon’s COVID-19 shot mandate. If passed by the Senate and signed into law, the August 24, 2021 mandate will be repealed within 30 days after the bill goes into effect. 

Some lawmakers, including Senator Rand Paul, announced on November 30 that they would stall the defense spending bill in the Senate if there was not a vote to end the mandate and reinstate troops. 

The draft of the bill states, “Not later than 30 days after the date of the enactment of this Act, the Secretary shall rescind the mandate that members of the Armed Forces be vaccinated against COVID-19 pursuant to the memorandum dated August 24, 2021, regarding ‘Mandatory Coronavirus Disease 2019 Vaccination of Department of Defense Service Members.’” 

However, even if the mandate is rescinded, a permanent injunction and more action is needed. 

Before the COVID shot mandate was issued on August 24, 2021, the DOD issued a religious accommodation request (RAR) policy related to immunization. Applying this RAR policy to the COVID-19 shot mandate, it is clear that the DOD and the military branches violate the Religious Freedom Restoration Act of 1993 (RFRA). Under RFRA, the military must satisfy the compelling interest and least restrictive means test to the person. Multiple courts have indicated the military violates this stringent requirement of RFRA by refusing to examine each service member individually. Instead, the military issues generalized statements to justify the mandate. Since this RAR policy applies to all immunizations, not just COVID-19, the policy must be enjoined and the DOD must comply with RFRA. 

In addition, the DOD must be permanently enjoined from retaliating against the service members who submitted a request for religious accommodation, and all service members who were punished, demoted or discharged must be reinstated and their records corrected. 

On December 14, Liberty Counsel will present oral argument at the Eleventh Circuit Court of Appeals on behalf of a Lt. Colonel of the U.S. Marines and a Navy Commander of a Warship. Then in January 2023, Liberty Counsel will return to court seeking to convert the classwide preliminary injunction to a permanent injunction for the U.S. Marines. 

Liberty Counsel Founder and Chairman Mat Staver said, “Repealing the COVID shot mandate for military members is a good step in the right direction, but it is not enough. Liberty Counsel will continue to fight to permanently enjoin the Department of Defense from violating service members’ religious freedom rights. The military must comply with the Religious Freedom Restoration Act.  In addition, all service members who have been punished, demoted, and discharged must be reinstated and their records cleared. Our military members who love God and America have been horribly abused and they must be honored again.” 

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