Judges Clarence Thomas, Samuel Alito and Neil Gorsuch disagreed. Alito, writing about himself and Gorsuch, said he agreed that the Navy had an “urgent interest” in preventing Covid-19 contamination from “damaging its ability to carry out its vital responsibilities”, but that it is a “brief rejection” of requests for religious exceptions was by no means the least restrictive means of promoting its interests. He said that the challengers “who volunteered to take on demanding and dangerous tasks to defend our country” were treated “miserably” by the Navy. Judge Brett Kavanaugh agreed with the majority and explained his view, saying he saw “no basis” for using “judicial power in a way that military commanders believe would harm the United States military as it defends the American people.” . The plaintiffs in the case – including more than two dozen Navy SEALs – say they have religious objections to the vaccine order and are seeking an exemption. A district court ruled against the Biden government and a federal court of appeals refused to intervene, saying it had not shown “overriding interests” to justify vaccinating plaintiffs in violation of their religious beliefs. The administration did not challenge part of the order that protected SEAL and other staff from discipline or discharge because they remained unvaccinated. However, the administration wanted the judges to block a part of the decision that requires the Navy to appoint and deploy 35 unvaccinated members of the special operations forces, while the appeal process is evolving. Attorney General Elizabeth Prelogar told judges in court documents that the Navy had informed her that it had already been forced to send one of the challengers to Hawaii to serve in a submarine “despite its military crisis.”
In court documents, Prelogar stressed that SEAL and other members of the Special Warfare community could be called upon to deploy anywhere in the world in a short period of time to complete high-risk missions under extreme conditions. The Navy currently requires nine vaccines. It allows two types of exceptions for medical and administrative reasons, which include “religious accommodation”. These exceptions are judged through Navy policies that include a 50-step process to satisfy a request for religious housing.
In the seven months since the addition of the Covid vaccine as a compulsory vaccine, the Navy has received more than 4,000 requests for exemptions. Most remain pending and Prelogar said the Navy has provided only one religious accommodation. According to a long-standing policy, members of the Special Warfare who cannot be vaccinated for religious reasons are considered non-physically qualified and cannot be placed in a company unit.