Another Vax Case

2/16/2022

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FormerDC

2/17/2022 12:27:41 pm

I'll take "Things that will be immediately reversed on appeal," for 1000, Alex.

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).

Judge Tillman spends some time on Orloff v. Willoughby and the Court’s statement that judges are not tasked with running the Army. Orloff arose as a result of a medical doctor being drafted into an enlisted position after Congress heard testimony from the AMA that a draft that did not exempt doctors would harm the medical profession in society writ large, and the Department of Defense, having made a testimonial promise to Congress to only assign doctors to medical fields broke that promise in regard to Orloff, who they suspected of being subversive. Orloff is distinguishable from the vaccine challenge cases because he did not assert a right arising from the plain language in the Bill of Rights, but rather, that he was discriminated against on the basis of his political ideology. Although Justice Jackson had some choice words for the government’s shifting arguments, he sided with the government.

As to Judge Tillman’s ruling, I have the following observation: it contains rhetorical flourishes and the injection of personal beliefs. It is not necessary for him to highlight his military career (marked by a Citadel diploma and four years as an officer). The law is interpreted and rulings are made – in theory on the law and not on personal experience. His experience provides no more efficacy to his decision than from a judge who did not serve. The rhetorical flourish, if standing alone, is just silly.

Another silly rhetorical flourish is his comment that generals would not understand the nuances of Constitutional Law. Presumably he does not include the judge advocate generals or the civilian attorneys in the Department of Defense who just might…. Have advised on this policy.

The flourishes, when coupled with an injection of the judge’s personal belief though, is outright deleterious to principle of an apolitical military or trust in the chain of command when he writes:

“Plaintiff’s natural immunity coupled with other preventive measures begs the question: Does a COVID-19 vaccine really provide more sufficient protection? This is especially curious given the number of people who have been and continue to be infected after becoming fully vaccinated and receiving a booster—including the Secretary of Defense, the Chairman of the Joint Chiefs of Staff, and the Commandant of the Marine Corps,”

Aside from the issue that a natural immunity might not be permanent or that the vaccine might mitigate the worst effects of Covid-19 and its various permutations (or that the plaintiff might place others at risk), Judge Tillman is not simply analyzing and interpreting the law, he is sowing doubt on the efficacy of a DoD wide policy at a time where there might be military action in Ukraine or in the South China Sea. In other words, he is encouraging other service-members to not only claim a religious right but also undermine faith in a chain of command.

I am not – again – suggesting that religious rights have no place in the vaccine orders of the military. The Court could very well determine that Congress intended the RFFA to cover this issue. But I am making a point that Judge Tillman and other judges who engage in this sort of conduct in the military context ought to first read the following words of Justice Joseph Story as placed in Martin v. Mott:

“The service is a military service, and the command of a military nature, and in such cases every delay and every obstacle to an efficient and immediate compliance necessarily tend to jeopard the public interests. While subordinate officers or soldiers are pausing to consider whether

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):

.......they ought to obey or are scrupulously weighing the evidence of the facts upon which the commander in chief exercises the right to demand their services, the hostile enterprise may be accomplished without the means of resistance.”

Perhaps Judge Tillman’s ruling is sustainable. But the manner in which this order is written is in contravention of the principles laid out in Mott, and frankly, unprofessional as a matter of at least hoped-for judicial norms.

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:

"While the members of the military are not excluded from the protection granted by the First Amendment, the different character of the military community and of the military mission requires a different application of those protections. The fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside it."

In this case, the Legislative History of RFRA is of significance. First, the House Committee on the Judiciary issued House Report 103-88 (May 11, 1993)[“House Report”], on RFRA, which stated:

The Committee recognizes that the religious liberty claims in the context of . . . the military present far different problems ... than they do in civilian settings. . . . [M]aintaining discipline in our armed forces, [has] been recognized as [a] governmental interest[] of the highest order. [House Report at 8].

The Senate’s Committee on the Judiciary, issued a more detailed analysis in Senate Report 103-11 (July 27, 1993)[“Senate Report”] in a section captioned as “Application of the Act to the Military:”

The courts have always recognized the compelling nature of the military’s interests in these objectives [maintaining good order, discipline, and security] in the regulation of our armed services. Likewise, the courts have always extended to military authorities
significant deference in effectuating these interests. The committee intends and expects that such deference will continue under this bill. [Senate Report at 11-12].

In this context, the impetus behind the RFRA is also important. In Employment Division v. Smith, 494 U.S. 872 (1990), the so-called “Peyote” case. It held that a State’s denial of unemployment benefits to Native Americans fired for using the drug as part of a religious sacrament of their Native American Church, did not violate the Free Exercise Clause. Congress reacted by passing RFRA.

Furthermore, in Bolden v. Roy, 476 U.S. 693, 699 (1986), the Court concluded: "Our cases have long recognized a distinction between the freedom of individual belief, which is absolute, and the freedom of individual conduct, which is not absolute." That Court concluded with this:

"The Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens."

The rationale for that came from a century earlier, in Reynolds v. United States, 98 U.S. 145, 166-67 (1878):

"Can a man excuse his practices to the contrary [of the law] because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect
to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances."

See also, United States v. Webster, 65 M.J. 936 (Army Ct.Crim.App. [ACCA]), rev. denied, 67 M.J. 9 (CAAF 2008), where a Soldier was convicted of, inter alia, violating a superior’s order, even after the Army offered a de facto accommodation to his religious objections, which he refused. While he raised a RFRA defense, ACCA noted that it was not an absolute defense.

More recently, CAAF rejected a RFRA challenge in United States v. Sterling, 75 M.J. 407 (CAAF 2016)..

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.

Gene Fidell link

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?

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:

"yet he may be compelled, by force if need be, against his will and without regard to his personal wishes or his pecuniary interests, or even his religious or political convictions, to take his place in the ranks of the army of his country and risk the chance of being shot down in its defense."

In the original draft act of 1917 there was no religious exemption and when the Court took up the cases in 1918 the justices rules on that law even though the Congress had amended it to include conscientious objection.

I think that the Cap'n has a point in that other exemptions are being granted and that the administration created a system that would enable religious exemption. But we have no idea how this system is in play. I suspect that because almost all of the applicants have been vaccinated in the past it makes it difficult to prove that the exemption application is meritorious and that the reviewers conclude that the crystalization of belief is masking another purpose. That purpose might be nothing less than a distrust of military judgment (agent orange, drug testing.... etc). It also may be personally sincere, but this is made more difficult because the major faith leaders have not opposed vaccination - I have no idea.

Yet, to the Cap'n's point about second class treatment. It is true that in the non-military cases, this has been an issue (bowling alleys open but houses of worship closed). I am not sure that works in the military context, and I say this without argument to his point. But rather, the military is governed by the separate society construct and the extent to which military judgments are given extra-credence by the courts has been a part of military law from the beginning.

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
PRACTICES IN THE AIR FORCE (2020), serves as the policy directive, as implemented by AFI 52-201, RELIGIOUS FREEDOM IN THE
DEPARTMENT OF THE AIR FORCE (2021).

There has been a fair amount of litigation under the RFRA, both in the military and involving federal prisoners. See, e.g., Singh v. Carter, 185 F.Supp.3d 11 (D.D.C. 2016), and Singh v. McHugh, 185 F.Supp.3d 201 (D.D.C. 2016). Albeit somewhat dated, see also, CRS Report, "Military Personnel and Freedom of Religious Expression: Selected Legal Issues." available here:
https://sgp.fas.org/crs/misc/R41171.pdf

And, Fitzkee & Letendre, Religion in the Military: Navigating the Channel Between the Religion Clauses, 59 A.F. Law Rev. 1 (2007).

For those interested in statistics, here a decent article:
https://www.airforcetimes.com/news/your-air-force/2022/02/08/air-force-approves-first-religious-exemptions-to-covid-19-vaccine-for-9-troops/

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