Anti-vaccine judges attack the Navy

Anti-vaccine ideology continues to infiltrate the federal judiciary. It now endangers national security. The Fifth Circuit Court of Appeals has declared that religious vaccine resistance is so important that Navy SEALs can defy orders and a federal judge in Texas can force unvaccinated crew members onto ships and submarines. A federal judge in Florida, citing that decision, has barred the Navy from replacing the insubordinate vaccine resister who is now commanding a multi-billion-dollar guided-missile destroyer. The ship is now out of commission – during the Ukraine crisis – because the Navy doesn’t trust the officer and won’t deploy the ship while he is in charge. (He repeatedly misled his superiors, and exposed dozens of his crew to COVID-19 when he decided not to test himself after experiencing symptoms.) 

Last Monday, the Biden administration asked the Supreme Court for a stay of the Texas injunction. It is appealing the other as well. If there were ever a case for the Supreme Court to reverse on an emergency basis (which it has been fond of doing lately), this is it.

In their toxic combination of anti-vax ideology and an extravagant conception of religious liberty, these courts are simply following the Supreme Court’s lead. In 1990, in Smith v. Employment Division, the Court held that religious people have no special privilege to disobey the law but are protected from discrimination by the First Amendment. 

Recently, however, primarily in cases challenging efforts to contain COVID, the Court so broadened its conception of discrimination that it can exempt religious people from any law the judges don’t like. (I taxonomize the Court’s new doctrinal moves in a new academic paper.) 

This tendency is particularly dangerous in the context of vaccine resistance, which now counts among its proponents at least three of the nine justices. If their views prevail, America will see new outbreaks of polio, measles and other diseases we thought we had eradicated. But the damage is already happening, as federal judges seize control of military personnel decisions.

Both courts in the two Navy cases relied on the federal Religious Freedom Restoration Act (RFRA), which requires that conscientious religious objectors be accommodated unless denying them is necessary to a compelling state interest. RFRA overruled Smith (the Court later held, only with respect to federal law), declaring that “the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.” The Senate committee report on the law noted that “the courts have always extended to military authorities significant deference . . . The committee intends and expects that such deference will continue under this bill.”

One of those “prior Federal court rulings” was Goldman v. Weinberger, which involved a far less pressing military interest than preventing troops from being incapacitated by disease. The Court held that a Jewish Air Force officer was not exempt from a regulation against wearing any head covering while indoors, including his yarmulke. The military’s interest in the uniformity of uniforms was enough to justify the rule. “Our review of military regulations challenged on First Amendment grounds is far more deferential than constitutional review of similar laws or regulations designed for civilian society,” Justice William Rehnquist wrote.    

Deference to national security judgments is one of the most firmly rooted rules of American law. In Rostker v. Goldberg (1981), the Court permitted the military to discriminate on the basis of sex by requiring draft registration of men and not women. It declared that “it is difficult to conceive of an area of governmental activity in which the courts have less competence” than on military personnel decisions. “The complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments, subject always to civilian control of the Legislative and Executive Branches.” 

In Trump v. Hawaii, faced with overwhelming evidence that raw religious bigotry had motivated the decision to bar entry into the U.S. from several predominantly Muslim nations, the Supreme Court declined in matters of national security to “substitute” the Court’s own “predictive judgments,” or its own “evaluation of the underlying facts,” for those of President Trump. 

Yet today courts blithely discount the military’s judgments about what is necessary to maintain readiness, and incidentally embrace scientific poppycock about vaccine efficacy. Entire ships have been sidelined by COVID outbreaks. The Florida judge won’t credit the sworn testimony of the of the commodore of the Navy unless he can cross-examine him. The Fifth Circuit nonchalantly declares that that the government identified “no instance where a Plaintiff’s vaccination status—or any service member’s vaccination status—compromised a special warfare mission.” Yes, and I know people who have repeatedly driven drunk without an accident. These courts not only don’t understand science. They don’t understand risk.

Part of the problem is the Supreme Court’s misreading of RFRA. Despite the statutory language quoted above, the Court declared in Burwell v. Hobby Lobby Stores (2014) that “RFRA did more than merely restore the balancing test used in the [pre-Smith] line of cases; it provided even broader protection for religious liberty than was available under those decisions.” That authorizes lower courts to ignore Goldman, along with every other precedent before RFRA that denied an exemption claim.

Mike Berry of First Liberty Institute, which has been representing the troops, has celebrated the Fifth Circuit decision, declaring that “the Constitution refuses to bend to authoritarian impulses.” He evidently thinks that it is tyrannical for the military to issue orders and expect them to be followed. He hopes to bring a class action on behalf of the more than 4000 military vaccine resisters. 

In Goldman the Supreme Court wrote that “[t]he inescapable demands of military discipline and obedience to orders cannot be taught on battlefields; the habit of immediate compliance with military procedures and orders must be virtually reflex with no time for debate or reflection.” A different reflex is at work here.

The Republican-dominated Roberts Court rules for religious claimants in almost 90 percent of cases. Partisanship is even starker in the lower federal courts, where, in religious challenges to pandemic restrictions on gatherings, “0% of Democrat-appointed judges have sided with religious plaintiffs, the majority (66%) of Republican-appointed judges have sided with religious plaintiffs, and 82% of Trump-appointed judges have sided with religious plaintiffs.” This latest assault on the Navy is part of that trend.

The Supreme Court will probably reverse these decisions. But why hasn’t it done so already? Every day it permits them to stand damages American military readiness.

Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed” (St. Martin’s Press, forthcoming).  Follow him on Twitter @AndrewKoppelman.