Despite dismissal, attorneys persist on military members punished under COVID vaccine mandate

Even though a federal judge dismissed a religious freedom case that lasted for nearly two years, attorneys representing Navy SEALs, Marines and other military service members and personnel "are never giving up on them," Liberty Counsel Founder and Chairman Mat Staver told The Center Square.

"Memorial Day is a good reminder of the sacrifice these men and women and their families have made," he said. "How they've been treated by the Biden administration is shameful and appalling. And as hard as they've fought for us, we will continue to fight for them."

On May 17, Judge Steven Merryday, presiding over the U.S. District Court Middle District of Florida Tampa Division, dismissed Liberty Counsel's class action lawsuit against the Secretary of Defense. Liberty Counsel is still pursuing attorney fees and costs, working with plaintiffs to determine how they can help them address losses they've suffered as a result of the mandate, including those who were punished, demoted and discharged after their religious accommodation request (RAR) exemptions were denied.

It's also arranging for service members to meet with Congress and is urging lawmakers to implement measures to provide the opportunity for those discharged to be reinstated and to restore the records of those who were demoted or disciplined after their RARs were denied, Staver told The Center Square.

The lawsuit stemmed from an August 24, 2021, Secretary of Defense memo mandating that all military service members and personnel receive the COVID-19 vaccine or be discharged. By October 2021, Liberty Counsel sued on behalf of members representing the branches of the military, federal employees and federal civilian contractors. The court later argued were unlawfully mandated to take an experimental drug or be fired. Liberty Counsel's clients filed RAR exemptions to the mandate, and none were granted.

What followed was a lengthy process and a federal judge chastising the heads of military branches for their blanket refusal to grant RARs in violation of the Religious Freedom Restoration Act. By January 2022, over 21,300 RARs were provided to the court, with zero exemptions granted.

Judge Merryday, who granted class status, said in a ruling last September, "the record reveals the substantial likelihood of a systemic failure by the Marine Corps to discharge the obligations established by RFRA."

In an earlier ruling, he pointed out that Marines had been charged additional monthly rent for noncompliance and given two days' notice to be discharged and ordered to leave their military housing, which he said, "suggests retribution and retaliation."

He also said that military leaders must comply with RFRA, because federal law applies to "everyone from the President to a park ranger … from the Chief Justice of the United States to a probation officer … from the Chairman of the Joint Chiefs of Staff to a military recruiter – even if they don't like it and even if they don't agree with it. The Free Exercise Clause and RFRA are the law of the land."

Those who objected to the mandate on religious grounds argue that taking the experimental drug didn't prevent transmission of the coronavirus and its use of aborted fetal cells in the development of the vaccine violated their religious beliefs. Those protected in the class who weren't discharged still faced "cruel and unusual punishment," demotion and dishonorable discharge, according to briefs filed with the court.

By December 2022, Congress mandated that the DOD rescind its vaccine mandate as part of the National Defense Authorization Act, which it did. A new policy the DOD implemented didn't automatically reinstate those who were discharged for refusing to comply with the mandate.

Next, the DOD then argued the case should be dropped but Staver told The Center Square in January they planned to continue fighting because they weren't confident the DOD wouldn't continue to retaliate against service members who'd filed RARs.

In January, companion bills were filed in the House and Senate to require the DOD to offer reinstatement to service members who were discharged for noncompliance, among other measures. The bills have so far gone nowhere.

At a congressional hearing in March, Rep. Matt Gaetz, R-Florida, asked leaders of the Air Force and Navy about their widespread rejection of RARs with one leader saying, "I'll have to get back to you on that," and another claiming no officers were discharged in direct contradiction to the data.

Four months after the mandate was rescinded, by April 2023, Judge Merrday asked the Eleventh Circuit to send the case back to him, which it did, and he subsequently dismissed the case.

"We will never give up fighting for them," Staver told The Center Square. "Their sacrifice, bravery, and commitment to God is inspiring. Their sacrifice and commitment has literally brought us to tears. This case has forever impacted me and the rest of our staff."

In a recent statement issued by Supreme Court Justice Neil Gorsuch, he pointed to federal, state and local government overreach during the coronavirus lockdowns as the "greatest intrusions on civil liberties in the peacetime history of this country." Included in his blistering rebuke was the DOD, which he said: "warned that service members who refused to vaccinate might face dishonorable discharge and confinement."

He also said "indefinite emergency edicts" risked leaving Americans "with a shell of a democracy and civil liberties just as hollow."