Navy SEALs practice Over The Beach evolutions during a training exercise at a remote training facility.
Mate of Photographer 2nd Class Eric S. Logsdon | United States Navy | Getty Images
The Supreme Court on Friday blocked a lower court order that prevented the Navy from restricting the deployment of Navy SEALs who refuse to be vaccinated against Covid.
Defense Secretary Lloyd Austin had urged the court to remedy what he called “an extraordinary and unprecedented intrusion into fundamental military matters” that had no precedent in American history.
A Texas federal judge ruled in early January that the Navy must allow members of the elite special operations community to opt out of mandatory vaccinations if they have religious objections. But the judge’s order went further, barring commanders from changing their military assignments based on a refusal to get vaccinated.
On Friday, the Supreme Court stayed the judge’s order “to the extent that it interferes with the Navy’s ability to make deployment, assignment and other operations decisions.” This frees up the Navy to issue deployment orders based on Covid vaccination status.
Three judges – Clarence Thomas, Samuel Alito and Neil Gorsuch – said they would have dismissed the Navy’s request.
In a separate dissenting opinion for himself and Gorsuch, Alito said the court approved the Navy’s request, doing “a great injustice” to sailors.
“These individuals appear to have been treated poorly by the Navy,” Alito said.
Justice Brett Kavanaugh said he agreed with Friday’s Supreme Court order. Under the Constitution, he said, “the President of the United States, not a federal judge, is the Commander-in-Chief of the Armed Forces.” The judge in that case improperly inserted himself into the military chain of command, Kavanaugh said.
Austin said the restriction usurps the Navy’s authority to decide when service members should be deployed to carry out some of the military’s most sensitive and dangerous missions. It required commanders to assign service members “without regard to their lack of vaccinations, notwithstanding the judgment of military leaders that this poses intolerable risks to the safety and success of the mission”.
The Navy once sent a member of a SEAL team on a submarine mission against commanders’ wishes, the Pentagon said.
U.S. District Court Judge Reed O’Connor issued the order Jan. 3 in a lawsuit brought by 35 Navy special forces personnel, including 26 SEALs, who said the mandatory vaccination policy violated their religious freedom. “The Navy provides a religious accommodation process, but obviously that’s theater. The Navy hasn’t granted a religious exemption to any vaccine in recent memory. It just automatically approves every denial,” he wrote.
On February 28, the United States Court of Appeals for the Fifth Circuit declined to block O’Connor’s order.
By granting the Navy’s request to block the order, the Supreme Court likely condemned the case of a Navy officer who commands a guided-missile destroyer. He filed a similar legal challenge to the vaccination requirement, and U.S. District Court Judge Steven Merryday of Florida, like O’Connor, found the vaccination order to be a violation of religious freedom and barred the navy to take any adverse action against the officer.
Because the Navy considers the officer a threat to the health of the crew, it blocked the deployment of the ship, along with its crew of 320.
The Supreme Court has traditionally shown great deference to military judgments regarding deployments. He said in a 1973 case that it is difficult to conceive of an area of government activity in which the courts have less jurisdiction than “complex, subtle and professional decisions as to the composition, training, equipment and the control of a force.”
In a 1986 case, the court said that the essence of military service “is the subordination of the desires and interests of the individual to the needs of the service”.