Justice Brett Kavanaugh was part of the Supreme Court’s majority vote to allow the Pentagon’s consideration of Navy SEALs’ vaccination status when making deployment decisions. Although Clarence Thomas, Samuel Alito and Neil Gorsuch, conservative Justices, were dissidents, Kavanaugh supported the majority’s decision not to intervene in the military’s coronavirus vaccination mandate.
Kavanaugh claimed that the district court had “in effect entered the Navy’s chainof command” by stopping the military vaccine mandate.
After President Joe Biden ordered the coronavirus vaccination for all military personnel, 35 Navy SEALs filed this lawsuit.
U.S. District Judge Reed O’Connor of Texas issued an order prohibiting the Navy from considering the vaccination status of SEALs during deployments and other operations in January.
Biden’s administration appealed Judge O’Connor’s decision to the U.S. Court of Appeals, Fifth Circuit. This court refused to override O’Connor’s preliminary order blocking the military’s mandate.
Friday’s stay by the district court was lifted by the Supreme Court. This allows the Navy to evaluate vaccination status for deployments, while the litigations around the mandate continue.
The Navy’s mandate for vaccines was alleged by the SEALs to violate their First Amendment right of religious freedom. Kavanaugh argued that the Religious Freedom Restoration Act “doesn’t justify judicial interference in military affairs in this instance.”
Kavanaugh stated that he did not see any reason to use the judicial power in a way that military commanders believed would compromise the military’s ability to defend the American people.
Justice Alito called the Court’s decision “a great injustice” and joined Justice Gorsuch in a dissent.
Alito agreed with Judge O’Connor’s assessment that the Navy provides religious exemptions for the vaccine.
Alito wrote that “Later Navy directives informed service members they could apply to religious exemptions, but this program, according to the District Court was largely “theater” designed for the denial or almost all requests.”
Only nine Religious Accommodations were granted by the Navy to Individual Ready Reserve Members (who must have received all required vaccines before returning to service), while zero exemptions for active duty personnel were granted.
Alito pointed out that the case will be heard in federal court. This could take many years. However, Kavanaugh’s vote with liberal justices is not a good sign. This could lead to these soldiers being expelled from the military.