by Bethany Blankley
U.S District Court Judge Steven Merryday issued a blistering rebuke of the Department of Defense and Marine Corps for refusing to grant religious accommodation requests to service members.
Merryday did so when issuing a 48-page ruling Thursday in which he granted class action status for all active and reserve U.S. Marine Corps service men and women in a lawsuit filed against the Secretary of Defense over the department’s COVID-19 vaccine mandate.
He also issued a classwide preliminary injunction against the Department of Defense and the U.S. Marine Corps, prohibiting them “from enforcing against a member of the class any order, requirement, or rule to accept COVID-19 vaccination; from separating or discharging from the Marine Corps a member of the class who declines COVID-19 vaccination; and from retaliating against a member of the class for the member’s asserting statutory rights under RFRA [Religious Freedom Restoration Act].”
The class includes everyone “on active duty or in the ready reserve who serve under the command of the Marine Corps; who were affirmed by a chaplain as harboring a sincere religious objection; who timely submitted an initial request for a religious accommodation; who were denied the initial request; who timely appealed the denial of the initial request; and who were denied or will be denied after appeal.”
In his order, Merryday points out that 3,733 Marines had requested religious accommodations and only 11 were granted to those who’d already put in for retirement. He then asked, “Is it more likely than not – in nearly all 3,733 cases – that no reasonable accommodation was available?
“Because the record reveals the substantial likelihood of a systemic failure by the Marine Corps to discharge the obligations established by RFRA,” he said.
Merryday said he issued the class wide preliminary injunction “to preserve the status quo, to permit the full development of the record without prejudice to the plaintiffs, and to permit both a trial and a detailed, fact-based resolution of the controlling issues of fact and law.”
He also chastised the Department of Defense and Marine Corps for refusing to grant religious accommodation requests, adding that it was the court’s responsibility to uphold the law when generals won’t.
“When Congress acts to preserve liberty, especially a liberty historically and constitutionally fundamental to the United States, the courts – the intended preserve of liberty – must not evade or equivocate, must not, so to speak, sacrifice the fundamental right of thousands of privates to Free Exercise in order to gratify the preference of a few generals.”
Government attorneys have argued the federal court doesn’t have jurisdiction to rule on military decisions. The Marine Corps has repeatedly asserted that, ‘The Supreme Court has made clear: ‘Judges are not given the task of running the Army,’” citing Orloff v. Willoughby, 345 U.S. 83, 93 (1953), which was decided 40 years before RFRA was enacted.
Secretary of Defense Lloyd Austin maintains the mandate is necessary for military preparedness. He ordered that noncompliance could result in discharge from service, court martial, other disciplinary procedures and consequences.
While the court is “certainly not ‘given the task of running the Army,’” Merriday responded, the courts “are entrusted to ensure that those who run the Marine Corps (and the military in general and every other component of the federal government) conform their actions to the governing law, to RFRA, to which the admirals and the generals and the commandants are unquestionably subordinate …
“To repeat: Yes, Congress and the President, not the courts, govern the military. But Congress and the President in governing the military and by enacting RFRA have established – for the narrow category of Free Exercise – an action and a remedy in the district court, have specified and placed the burden of proof on the military, and have allowed for an ‘appropriate remedy’ to ensure a service member’s Free Exercise. That conclusion is not fairly contestable, and the military must acquiesce to the command of Congress and the President in that respect.”
He said services member can sue in federal district court over a RFRA violation and “pursue relief from a systemic deprivation of Free Exercise, preserved and protected by RFRA.” His order and action, he said, “will proceed accordingly.”
Merryday also addressed the fact that Marines had been charged additional monthly rent for noncompliance and given two days’ notice to be discharged and ordered to leave their military housing. He said to “resort to two-day warnings of discharge (and, in the instance of First Lieutenant and undoubtedly others, suddenly charging daily rent of more than $100 to remain in military housing while packing one’s family and searching for civilian housing) suggests retribution and retaliation …”
He also spoke to a policy employed by supervisors or chaplains to deny religious accommodation requests. He said, “Although Marines of different faiths, different education, and different acumen might understand or explain this objection differently and with more or less clarity, many Marines, including Christians and Muslims, object that the COVID-19 vaccine was developed from cell lines derived from electively aborted fetuses and that introducing an mRNA-active substance into their body either desecrates their body, a temple of the Holy Spirt, or is haram, forbidden. In any case, neither the military nor the judiciary can judge the validity of a religious objection (unless the objection is irrational, delusional, or the like) – but can judge only the sincerity of the belief, which is demonstrated firmly in the administrative record by the chaplain’s assessment of sincerity.”
Of Merriday’s ruling, Mat Staver, founder and chairman of Liberty Counsel, the nonprofit representing the Marine Corps plaintiffs, said, “Our courageous U.S. Marines finally have relief from these unlawful COVID shot mandates. The Biden administration and the Department of Defense are not above the law. These brave service members have been abused and mistreated because of their faith. They have faced discharge, court martial, other life-altering disciplinary procedures, and termination for simply embracing their religious freedom to choose not the inject a substance into their bodies. The Department of Defense has relentlessly violated the law and ignored their religious freedom. Today, that lawlessness ends.”
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Bethany Blankley is a regular contributor to The Center Square.
Photo “U.S. Marine Corps” by U.S. Marine Corps.