SCOTUS sides with Navy, SEALS must be vaccinated for COVID-19 before being deployed

Navy SEALs demonstrate winter warfare capabilities. MAMMOTH LAKES, CA, UNITED STATES 12.09.2014 Courtesy Photo Naval Special Warfare Command

David G. Savage

Los Angeles Times

The Supreme Court lifted part of a Texas judge’s order Friday and ruled 6-3 that the U.S. military may refuse to deploy Navy SEALS or other troops who have refused to be vaccinated for COVID-19, citing their religious beliefs. Justices Clarence Thomas, Samuel A. Alito and Neil M. Gorsuch dissented.

The decision is a victory for the Biden administration and Secretary of Defense Lloyd Austin, who last year required all service personnel to be vaccinated. In November, the Pentagon said 99.4% of the troops were vaccinated.

In a brief unsigned order, the justices set aside lower court rulings that would prevent “the Navy from considering respondents’ vaccination status in making deployment, assignment, and other operational decisions.”

Under the Constitution, “the president of the United States, not any federal judge, is the Commander in Chief of the Armed Forces,” Justice Brett M. Kavanaugh said in a concurring opinion. “I see no basis in this case for employing the judicial power in a manner that military commanders believe would impair the military of the United States as it defends the American people.”

In dissent, Alito and Gorsuch faulted the majority for “rubber stamping” the government’s vaccination order and for “brushing aside” the religious objections raised by the SEALS.

In recent months, the justices stopped the federal government from enforcing vaccination mandates on all private employers, but they have allowed states, hospitals and school districts to require vaccinations for their own employees.

For decades, the high court has repeatedly said judges must defer to the military and its commanders on matters involving order and discipline within the ranks.

But in January, U.S. District Judge Reed O’Connor in Fort Worth, Texas, ruled that the Navy may not discipline or discriminate against 36 SEALS and other special forces who refused to be vaccinated citing religious reasons.

He said some of them believed aborted fetal cells played a key role in developing the vaccine, while others cited “direct, divine instruction not to receive the vaccine.” He said these beliefs “are undisputedly sincere, and it is not the role of this court to determine their truthfulness or accuracy.”

The judge issued an order telling the Navy it may not refuse to deploy SEALS on any mission because of their refusal to be vaccinated. Last month, the 5th Circuit Court in New Orleans refused the government’s request to lift his order.

In appealing to the high court, U.S. Solicitor General Elizabeth B. Prelogar called the decision an “extraordinary and unprecedented intrusion into core military affairs.” She said that prior to the outbreak of the new coronavirus, nine vaccines had been required of all service members. And the history of the policy dates back to 1777, when George Washington required members of his Continental Army to be vaccinated against smallpox.

She cited the testimony of Adm. William K. Lescher, vice chief of Naval Operations and the second-highest uniformed officer in the Navy, who said the illness of “even one member” of a small SEAL team due to COVID-19 could “compromise the mission.”

He said he would regard it as a “dereliction of duty” to order “unvaccinated personnel into an environment in which they endanger their lives,” risk “the lives of others,” and “compromise accomplishment of essential missions.”

The Biden administration’s attorney did not ask the high court to overrule the judge’s decision entirely but, rather, to limit its impact. She said the order not only shields the SEALS from being disciplined or discharged, but also “requires the Navy to assign and deploy them without regard to their lack of vaccinations notwithstanding military leaders’ judgment,” she said. “Doing so poses intolerable risks to safety and mission success.”

O’Connor’s courtroom in Fort Worth is a friendly forum for conservative causes. In 2018, he ruled the Affordable Care Act was entirely unconstitutional, a decision overturned by the Supreme Court on a 7-2 vote.

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