The Biden administration filed an emergency application with the Supreme Court on Monday, asking it to freeze a lower-court opinion requiring the Navy to deploy special operations forces even though they have refused to get vaccinated for Covid-19.
“This application seeks relief from a preliminary injunction that usurps the Navy’s authority to decide which servicemembers should be deployed to execute some of the military’s most sensitive and dangerous missions,” Solicitor General Elizabeth Prelogar told the justices in the administration’s application on Monday.
She is not challenging a portion of the injunction that protected the SEALs and other personnel from discipline or discharge for remaining unvaccinated. But she is asking that the ruling forcing the Navy to assign and deploy 35 unvaccinated members of special operations forces be blocked while the appeals process plays out.
The challengers – including more than two dozen Navy SEALs – say they have religious objections to the requirement and are seeking an exemption.
A district court ruled against the administration, and a federal appeals court declined to step in, saying that it had not demonstrated “paramount interests” that justify vaccinating the plaintiffs in violation of their religious beliefs.
Lawyers for the First Liberty Institute are representing the challengers and said in a statement on Monday that the lower courts “got it right.”
“The U.S. Supreme Court should reject this latest attempt to punish our clients and make clear, once and for all, that our service members do not forfeit their religious freedom because they are in the military,” said Mike Berry, senior counsel for First Liberty.
Prelogar told the justices that the Navy has informed her that it has already been forced to send one of the challengers to Hawaii for duty on a submarine “against its military judgment.”
Prelogar stressed that SEALs and other members of the Special Warfare community can be called upon to deploy anywhere in the world on short notice to complete high-risk missions under extreme conditions. She noted that in 2009 a team of SEALs flew 8,000 miles to respond to the hijacking of a US-flagged ship by Somali pirates and ultimately played a critical role in rescuing the ship’s captain, who was being held hostage.
“The Navy has an extraordinarily compelling interest in ensuring that the servicemembers who perform those missions are as physically and medically prepared as possible,” she said, adding: “That includes vaccinating them against COVID-19, which is the least restrictive means of achieving that interest.”
She said that the US military has relied on mandatory immunization since 1777 when George Washington directed the inoculation of the Continental Army against smallpox.
The Navy currently requires nine vaccines. It allows two types of exemptions for medical and administrative reasons, which include “religious accommodations.” Those exemptions are adjudicated through Navy policies which include a 50-step process to entertain a religious accommodation request.
In the seven months since the Covid vaccine was added as a mandatory immunization, the Navy has received more than 4,000 requests for exemptions. Most remain pending, and Prelogar says the Navy has only granted one religious accommodation.
Under longstanding policy, Special Warfare servicemembers who cannot be vaccinated for religious reasons are deemed not physically qualified and cannot be assigned to an operation unit.
Prelogar said if the Supreme Court were to freeze the lower court opinion, that they would not be entitled to be assigned to or deployed on missions that “their commanding officers have determined would be jeopardized by their lack of vaccination.”