LLOYD J. AUSTIN, III, SECRETARY OF DEFENSE, ET AL. v. U. S. NAVY SEALS 1-26, ET AL.
No. 21A477
SUPREME COURT OF THE UNITED STATES
March 25, 2022
595 U. S. ____ (2022)
KAVANAUGH, J., concurring; THOMAS, J., dissenting; ALITO, J., dissenting
ON APPLICATION FOR A PARTIAL STAY
JUSTICE THOMAS would deny the application for a partial stay.
JUSTICE KAVANAUGH, concurring.
I concur in the Court‘s decision to grant the Government‘s application for a partial stay of the District Court‘s preliminary injunction for a simple overarching reason: Under Article II of the Constitution, the President of the United States, not any federal judge, is the Commander in Chief of the Armed Forces. In light of that bedrock constitutional principle, “courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs.” Department of Navy v. Egan, 484 U. S. 518, 530 (1988). As the Court has long emphasized, moreover, the “complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments.” Gilligan v. Morgan, 413 U. S. 1, 10 (1973). Therefore, it is “difficult to conceive of an area of governmental activity in which the courts have less competence.” Ibid.
In this case, the District Court, while no doubt well-intentioned, in effect inserted itself into the Navy‘s chain of command, overriding military commanders’ professional military judgments. The Court relied on the Religious Freedom Restoration Act. See
The Court “should indulge the widest latitude” to sustain the President‘s “function to command the instruments of national force, at least when turned against the outside world for the security of our society.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 645 (1952) (Jackson, J., concurring). That fundamental principle applies here. As Admiral William Lescher, Vice Chief of Naval Operations, explained: “Sending ships into combat without maximizing the crew‘s odds of success, such as would be the case with ship deficiencies in ordnance, radar, working weapons or the means to reliably accomplish the mission, is dereliction of duty. The same applies to ordering unvaccinated personnel into an environment in which they endanger their lives, the lives of others and compromise accomplishment of essential missions.” App. to Application for Partial Stay 110a.
By rubberstamping the Government‘s request for what it calls a “partial stay,” the Court does a great injustice to the 35 respondents—Navy Seals and others in the Naval Special Warfare community—who have volunteered to undertake demanding and hazardous duties to defend our country. These individuals appear to have been treated shabbily by the Navy, and the Court brushes all that aside. I would not do so, and I therefore dissent.
I
In August 2021, the Secretary of the Navy made COVID–19 vaccination mandatory and threatened severe consequences, including dishonorable discharge and confinement, for anyone who refused.1 Later Navy directives told service members that they could apply for religious exemptions, see Electronic Case Filing in U. S. Navy Seals 1–26 v. Biden, No. 4:21-cv-01236 (ND Tex., Jan. 3, 2022) (ECF), Doc. 44-1, p. 40 (Trident Order #12), but this program, as
The exemption procedure that the Navy set up included no fewer than 50 steps, and during the first 35 steps, none of the various officials who processed requests gave any consideration to their merit. Decl. of A. Stephens, Exh. 1, ECF Doc. 62, at 10-26. Instead, a form letter rejecting each request was prepared and sent to seven offices for review. App. 40a.2 A package of rejection letters was then assembled, together with a memo asking the vice admiral who served as a deputy chief of naval operations to sign the rejection letters. Ibid. Only at step 35 was someone in this chain told to read the exemption requests, but it appears that this individual was not given an opportunity to recommend that a request be granted. See ECF Doc. 62, at 7. Instead, this person‘s sole task was to record pertinent information on a spreadsheet and send the package on to the vice admiral. Id., at 7-8.
Given the nature of this procedure, the results it produced are not surprising. Although more than 4,000 exemption requests had been submitted by February 15, 2022, not a single one had been approved when the complaint in this case was filed. See Application for Partial Stay 9, and n. 3 (Application) (citing ECF Doc. 129, at 16, n. 2 (Feb. 23, 2022)).
Respondents are among the many recipients of form rejection letters, and according to their declarations and testimony, some of them were told outright that pressing for a
Forced to choose between violating their religious beliefs and the punishment that the Navy threatened, respondents brought this suit, claiming that the Navy‘s denial of their exemption requests violated the Free Exercise Clause of the First Amendment and the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488,
The Government appealed and asked the U. S. Court of
The Government then applied to this Court for what it characterizes as a “partial stay,” and the Court now issues a stay that uses precisely the language that the Government proposed. As I will explain, the Court‘s order essentially gives the Navy carte blanche to warehouse respondents for the duration of the appellate process, which may take years. There is no justification for this unexplained and potentially career-ending disposition.
II
In order to obtain a stay, the Government must show, among other things, that it is likely to succeed in defeating respondents’ RFRA and free exercise claims, Hilton v. Braunskill, 481 U. S. 770, 776 (1987), and it cannot make that showing.
A
Under the clear terms of RFRA, all components of the Federal Government are forbidden to burden a person‘s exercise of religion unless the Government can demonstrate that the burden represents the least restrictive means of furthering a compelling interest.
As to the first question, I agree that the Navy has a compelling interest in preventing COVID–19 infection from impairing its ability to carry out its vital responsibilities, as well as a compelling interest in minimizing any serious health risk to Navy personnel. But the Navy‘s summary rejection of respondents’ requests for religious exemptions was by no means the least restrictive means of furthering those interests. This is so for at least two reasons.
First, all the evidence available at this stage suggests that the Navy gave no real consideration to respondents’ requests, and the Navy had no compelling need to proceed in that fashion. I cannot believe that this Court would tolerate such treatment in other contexts. Suppose, for example, that a federal agency processed employee complaints about discrimination on the basis of race, sex, or disability using a 50-step process in which rejection was presumed until the very last step, and suppose that the record showed that this procedure nearly always resulted in the denial of a claim. We would be outraged—and rightfully so. Why, then, is the Court willing to brush aside what appears to have occurred here?
Second, even if we ignore what the Navy did and accept the justification for the denials that Justice Department lawyers later provided in court, the relief that the Court now awards goes well beyond anything that can possibly be regarded as the least restrictive means of further compelling Navy interests. Focusing primarily on the Seals, the Government stresses certain characteristics of Seal missions, including small unit size, the frequent need to work
In order to win at trial, it would not be enough for the Government to posit that sending an unvaccinated Seal on such a mission might produce such consequences. A court could not simply defer to the Navy‘s opinion, and mere “conjecture” or “speculation” would not be enough. See Ramirez v. Collier, 595 U. S. ____, ____ (2022) (slip op., at 13–15); Fulton v. Philadelphia, 593 U. S. ____, ____ (2021) (slip op., at 14). The Government would bear the burden of showing that mandatory vaccination is the least restrictive means of furthering the interest it asserts in light of the present nature of the pandemic, what is known about the spread of the virus and the effectiveness of the vaccines, prevalent practices, and the physical characteristics of Navy Seals and others in the Special Warfare community.
Whether the Government will be able to make the requisite showing remains to be seen, but for the purposes of considering interim relief that is sought in an emergency application, I am willing to accept the Navy‘s need to refrain from sending unvaccinated Seals on the types of missions the Government has described. But participating in such missions is not the only thing that respondents do, and the relief that the Government sought and that the Court now awards goes much further. Using the terminology selected by the Government, the Court stays the preliminary injunction with respect to decisions about “deployment,” “assignment,” and “other operational decisions.”
The Government has not told us what these terms mean, but without any contrary guidance, we must assume that they will be interpreted in accordance with the definitions
“Deployment” is defined as “[t]he movement of forces into and out of an operational area,”4 and an “operational area” seems to mean any “geographic are[a]” where the Navy might carry out “a strategic, operational, tactical, service, training, or administrative military mission.”5 Thus, sending a respondent somewhere for training or administrative purposes may constitute a deployment.
The term “assignment” appears to include detailing an individual to perform any duties on something more than a temporary basis.6 And an “operational decision” apparently can include the carrying out of any “strategic, operational, tactical, service, training, or administrative military mission.”7
Putting all this together, it appears that the Court‘s order allows the Navy to use respondents’ unvaccinated status as a reason for directing them to perform whatever duties or functions the Navy wants, including sitting alone in a room
I would not rubberstamp the Government‘s proposed language. While I am not sure that the Navy is entitled to any relief at this stage, I am also wary, as was the District Court, about judicial interference with sensitive military decision making. Granting a substantial measure of deference to the Navy, I would limit the order to the selection of the Special Warfare service members who are sent on missions where there is a special need to minimize the risk that the illness of a member due to COVID–19 might jeopardize the success of the mission or the safety of the team members. This, I believe, was the aim of the District Court, and respondents themselves understand the preliminary injunction that way. See Response in Opposition 1 (stating that the injunction “does not require the Navy to deploy any of the thirty-five plaintiffs” (footnote omitted)).
B
Respondents are also likely to prevail on their claims under the Free Exercise Clause. Under our case law, if the Federal Government or a State treats conduct engaged in for religious reasons less favorably than similar conduct engaged in for secular reasons, that treatment is unconstitutional unless the relevant jurisdiction can satisfy “strict scrutiny,” which is essentially the same as the standard imposed by RFRA. See Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 878–879 (1990); Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 533 (1993).
That “[o]ur review of military regulations challenged on First Amendment grounds” is deferential does not “render
Here, the Navy treated service members who applied for medical exemptions more favorably than those who sought religious exemptions. For one thing, requests for medical exemptions were seriously considered, and quite a few were granted, at least on a temporary basis. Application 7-8; 27 F. 4th, at ____, App. 20a (“[T]he Navy acknowledges that it has granted hundreds of medical exemptions from the COVID–19 vaccine, at least 17 of which were temporary medical exemptions for those in Naval Special Warfare“). In addition, service personnel with medical exemptions are not restricted as severely as respondents will be under the Court‘s order. App. 42a. Indeed, the District Court found that under Navy policy those participating in clinical trials and those with medical contraindications and allergies to vaccines remained deployable, unlike those seeking religious accommodations. Id., at 50a (citing ECF Doc. 17–2, at 66). The Navy has no interest in different treatment for accommodation requests that produce otherwise identical outcomes. I would therefore specify in the Court‘s order that the Navy must provide equal treatment for all unvaccinated service members.
III
Today, the Court brushes aside respondents’ First Amendment and RFRA rights. But yesterday, the Court handed down another decision that illustrates the strong protection for religious liberty that is provided by the framework that applies under RFRA and strict scrutiny. The decision in question, Ramirez v. Collier, involved a convicted murderer awaiting execution and his rights under
The contrast between our decision in Ramirez yesterday and the Court‘s treatment of respondents today is striking. We properly went to some lengths to protect Ramirez‘s rights because that is what the law demands. We should do no less for respondents.