The U.S. Court of Appeals for the Sixth Circuit unanimously upheld a class-wide injunction Wednesday protecting the rights of more than 10,000 U.S. Air Force personnel. They were being threatened with discipline or discharge because they refused to take the COVID-19 vaccine due to their religious convictions.
The three-judge panel found the U.S. military's vaccine mandate violates their religious freedom under the First Amendment and the Religious Freedom Restoration Act of 1993 (RFRA).
In the order for Hunter Doster, et al. v. Hon Frank Kendall, et al., the Sixth Circuit affirmed the lower court's decisions in an opinion by Judge Eric E. Murphy, joined by Judges John K. Bush and Raymond M. Kethledge, and denied the federal government's appeal to require the entire class of Air Force members to receive COVID-19 shots.
Liberty Counsel Founder and Chairman Mat Staver said, "This is a great decision that grants protection for the religious freedom for all Air Force personnel from Joe Biden's unlawful COVID shot mandate. No service member should be required to choose between service to the country and service to God."
As CBN News reported in September, the Cincinnati, Ohio-based appeals court with jurisdiction over federal appeals from the states of Kentucky, Michigan, Ohio, and Tennessee, had previously denied the Air Force's emergency motion against the class certification and injunction granted by District Judge Matthew W. McFarland, of the Southern District of Ohio, in July.
McFarland had ordered the Air Force to not take any disciplinary or separation measures against a class of some 10,000 unvaccinated service members who had requested religious exemptions from the COVID-19 mandate ordered by President Biden's Defense Secretary Lloyd Austin in August of 2021. All service members in the Army, Air Force, Space Force, Navy, Marines, and Coast Guard – active-duty, National Guard, and Reserves – had been ordered to take the vaccine to maintain the health and readiness of the U.S. military.
Air Force Denied Religious Exemptions to Anyone Who Did Not Plan to Leave the Service Within a Year
The Air Force granted only about 135 religious exemption requests, and only to those already planning to leave the service. By July 2022, the Air Force had "administratively separated" 834 members. Yet it has granted thousands of other exemptions for medical reasons, such as a pregnancy or allergy, or administrative reasons, such as an impending retirement.
The Air Force even agreed that it has not granted any religious exemptions to anyone who does not plan to leave the service within a year. On the other hand, in December 2021, there were a total of 2,047 service members with medical exemptions and 2,247 service members with administrative exemptions.
Eighteen plaintiffs, some on active duty and others in the reserves, sued Secretary Frank Kendall, Surgeon General Robert Miller, and the commanders of three major commands in February 2022. The plaintiffs asserted that the shot mandate substantially burdens their First Amendment and RFRA freedoms and that the Air Force discriminated against religious exemptions while broadly granting medical and administrative exemptions.
Since RFRA requires that the military must consider each religious exemption claim individually, the Sixth Circuit noted in its 56-page ruling, "The Air Force fails to identify the specific duties or working conditions of a single Plaintiff. It instead seeks to satisfy RFRA with the 'general interests' underlying its vaccine mandate. We are thus asked to deny that common questions exist for purposes of certifying a class but to accept that common answers exist for purposes of rejecting all 18 Plaintiffs' claims on their merits."
Judge Murphy also wrote, "Under RFRA, the Air Force wrongly relied on its 'broadly formulated' reasons for the vaccine mandate to deny specific exemptions to the Plaintiffs, especially since it has granted secular exemptions to their colleagues. We thus may uphold the Plaintiffs' injunction based on RFRA alone."
Murphy also noted that even though the Air Force ordered the COVID shot for the health of the service, "it allowed medical and administrative exemptions that undercut that interest," citing several examples.
"As for its health interest, the Air Force says that it must reject religious exemptions because those working in 'close physical contact' can spread COVID-19. But the Air Force has allowed medical or administrative exemptions even when these exemptions undercut that interest. The Surgeon General, for example, denied Lieutenant Doster a religious exemption because his work as a student 'require(d) intermittent to frequent contact with others.' But the Air Force granted multiple medical exemptions to pregnant women who worked with him and performed 'identical assignments'," the judge wrote.
"Likewise, the Surgeon General denied Airman Dills a religious exemption because he had 'frequent contact with others' as a passenger representative. Yet Dills worked with '(s)everal' colleagues who obtained other exemptions. The Air Force allowed these members to continue 'interacting with people' and 'working in close quarters' without change. Perhaps most striking, the Surgeon General denied a religious exemption for Major Corvi (a class member) because her assignment 'require(d) intermittent to frequent contact with others.' In the same month, she received a medical exemption for her pregnancy. The Air Force does not explain why service members who remain unvaccinated because of their pending retirement or pregnancy pose less of a risk of spreading COVID-19 than those who remain unvaccinated because of their religion," Murphy continued.
The Sixth Circuit Court also disagreed with the Air Force's operational readiness argument, writing: "As for its readiness interest, the Air Force says that it must ensure that all service members remain immediately deployable. But service members who obtain medical or administrative exemptions generally cannot deploy because the Air Force treats anyone who has not taken a COVID-19 vaccine as nondeployable…So even though the Surgeon General denies religious exemptions on the ground that the Air Force 'must be able to leverage our forces on short notice,' the Air Force does not believe that this 'immediately deployable' concern also requires it to compel the vaccination of a service member who has an allergy or plans to retire in the near future."
The court also noted, "The Air Force also fails to explain how temporarily retaining class members—rather than immediately discharging them—will harm any operational concerns. Its own willingness to exempt these thousands of class members from its mandate while it processed their exemption requests over many months undercuts any such urgent need."
Nonprofit Law Firm Heads Next to 11th Circuit Court of Appeals
On Dec. 14, Liberty Counsel will present an oral argument at the Eleventh Circuit Court of Appeals in Atlanta, GA, on behalf of a lieutenant colonel serving in the U.S. Marines and a Navy commander of a warship.
Then in January, Liberty Counsel will return to court seeking to convert the classwide preliminary injunction to a permanent injunction for the U.S. Marines. The Christian religious rights law firm brought the original lawsuit against Secretary of Defense Austin on behalf of all U.S. Marines who were denied religious accommodations.
As CBN News reported in August, U.S. District Court of Florida Judge Steven Merryday ordered class action relief and granted a classwide preliminary injunction against the federal government's COVID shot mandate for all U.S. Marines whether they are active or in reserve service.
Merryday's injunction against the Department of Defense and the U.S. Marine Corps barred them from "retaliating against a member of the class for the member's asserting statutory rights under RFRA (Religious Freedom Restoration Act)."
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