Judge Reed O’Connor, of the Federal District Court in Fort Worth, had issued a preliminary injunction barring the Navy from taking any punitive action against its personnel, including 26 SEALs, while their lawsuit moved forward. Judge O’Connor said the plaintiffs had religious objections to the coronavirus vaccine that the Navy had to respect.
After a unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit, in New Orleans, refused to block that ruling, the Biden administration filed an emergency application in the Supreme Court.
The administration requested only partial relief, saying it did not seek to block the part of the injunction protecting the plaintiffs from discharge or discipline. Instead, Elizabeth B. Prelogar, the solicitor general, asked the justices to maintain “the Navy’s authority to decide which service members should be deployed to execute some of the military’s most sensitive and dangerous missions.”
Ms. Prelogar wrote that the injunction had already forced the Navy, against its military judgment, to send one of the plaintiffs to Hawaii for submarine duty. In general, she wrote, “Navy personnel routinely operate for extended periods of time in confined spaces that are ripe breeding grounds for respiratory illnesses, where mitigation measures such as distancing are impractical or impossible.”
She noted that the military had long required vaccinations, starting in 1777, when George Washington ordered the inoculation of the Continental Army against smallpox. As of early 2021, she wrote, nine vaccines were required for all service members.
In August, the Defense Department said it would add the coronavirus vaccine to the list. By the end of the year, more than 99 percent of active-duty Navy service members had been fully vaccinated.
But the 35 service members, all assigned to the Naval Special Warfare Command, refused, saying that their religious faith forbade them from being vaccinated against Covid-19. They had four kinds of objections, Judge O’Connor wrote: “opposition to abortion and the use of aborted fetal cell lines in development of the vaccine,” “belief that modifying one’s body is an affront to the Creator,” “direct, divine instruction not to receive the vaccine” and “opposition to injecting trace amounts of animal cells into one’s body.”
