FormerDC
2/17/2022 12:27:41 pm
I'll take "Things that will be immediately reversed on appeal," for 1000, Alex.
Reply
Joshua Kastenberg
2/17/2022 05:28:57 pm
I will not pretend to be an expert on the Religious Freedom Restoration Act (RFRA) or its applicability to the vaccine order from the Department of Defense. It strikes me though, that the Court’s injunction regarding OSHA – that is, because Congress did not expressly include vaccines in the OSHA laws (but could have), might, at first glance militate against the RFRA’s generalized applicability to the vaccine issue here. Of course, the Court was dealing with a challenge from entities other than individuals who argued that the President exceeded his statutory authority and in the military vaccine orders cases before the district courts, the challenge is from individuals who are asserting a statutory based right. I understand that freedom of religion is clearly demarcated in the First Amendment as a right, but the Court in Goldman v. Weinberger – an opinion predating the RFRA – held that this right had limits in the military context. Goldman, in my opinion, was wrongly decided and the Air Force was wholly disingenuous in its treatment of Dr. Simcha Goldman. It provided one impetus for Congress to act, which occurred. But the act states nothing about vaccines and this is a question likely to go up on appeal to the Court (or at least I hope it does for clarity’s sake).
Reply
Joshua Kastenberg
2/18/2022 03:46:16 am
This is a continuation of the prior comment (I think it ran too long for the site's capacity and I apologize):
Reply
Donald G Rehkopf, Jr.
2/18/2022 11:46:18 am
@Joshua - the Judge is Tilman E. "Tripp" Self III, a Trump appointee. But, as SCOTUS held in United States v. Lee, 455 U.S. 252, 257 (1982), "Not all burdens on religion are unconstitutional." This case further ignores the principle announced in Parker v. Levy, 417 U.S. 733, 758 (1974), that:
Reply
Cap'n Crunch
2/19/2022 03:32:55 pm
The issue with all of these vaccine cases isn't that the military cannot mandate vaccines (they unquestionably can). The RFRA issue is that the military is granting thousands of medical and administrative exemptions. If everyone really, really, has to be vaccinated, for readiness and force protection, then there should not be any exemptions. This also means that it is not true that no exemptions can be granted for force protection or military readiness requirements. They clearly can be, and have been. The branches are simply relegating the religious exemptions to a second class status vis-a-vis administrative exemptions or medical exemptions. There is recently U.S. Supreme Court case law on this, including Fulton v. City of Philadelphia. And the preliminary injunctions will continue to roll out for any ripe case that has been administratively exhausted.
Reply
2/20/2022 10:10:55 am
Suppose Congress revives the draft (with or without women--set that issue aside). What if a person claims a sincere religious objection . . . but only to some wars. Or suppose a person on active duty seeks conscientious objector status tomorrow morning based on a sincere but selective religious objection. Does either get a free pass under RFRA/Fulton?
Reply
Cap’n Crunch
2/21/2022 09:54:21 am
The services clearly can mandate deployments or participation in war. Where it gets dicey is if the services start granting secular exceptions. Like Sergant Snuffy who has a family doesn’t have to deploy, and Private Pyle doesn’t have to deploy because he has a health condition but can remain in service. Fulton says If you consider and grant secular exceptions to policy, you can’t withhold exceptions to those seeking a religious exemption. I am certain none of these cases would be coming out the way they are if there were absolutely zero exceptions being granted.
Joshua Kastenberg
2/20/2022 11:55:21 am
Gene % Cap'n. Thank you to both. In the history of the draft and the federal judiciary, it has its origins in the Jacobson case with the following comment (dicta) embedded by Justice Harlan:
Reply
Donald G Rehkopf, Jr.
2/21/2022 01:37:46 pm
DOD INSTRUCTION 1300.17, RELIGIOUS LIBERTY IN THE MILITARY SERVICES (2020), is the governing Instruction. In the AF (the branch involved here), AFPD 52-2, ACCOMMODATION OF RELIGIOUS
Reply
Your comment will be posted after it is approved.
Leave a Reply. |
Links
CAAF -Daily Journal -Current Term Opinions ACCA AFCCA CGCCA NMCCA Joint R. App. Pro. Global MJ Reform LOC Mil. Law Army Lawyer Resources Categories
All
Archives
April 2022
|