Lawsuits over military vaccine mandate to continue despite DOD rescinding it

Liberty Counsel founder and chairman isn’t confident that the DOD wouldn’t continue to retaliate against service members who’d filed religious accommodation requests.

Liberty Counsel founder and chairman isn’t confident that the DOD wouldn’t continue to retaliate against service members who’d filed religious accommodation requests

Bethany Blankley
The Center Square

Liberty Counsel is continuing with its lawsuits in federal court over the Department of Defense COVID-19 vaccine mandate even after the mandate was rescinded this week.

Liberty Counsel founder and chairman Mat Staver told The Center Square he wasn’t confident that the DOD wouldn’t continue to retaliate against service members who’d filed religious accommodation requests (RARs) and has expressed concerns about all military branches failing to comply with the Religious Freedom Restoration Act.

The Orlando-based religious freedom legal foundation is scheduled to go to trial in one of its cases next month in federal court before Judge Steven Merryday. It’s asking the court to grant permanent class action relief for everyone serving in the U.S. Marine Corps from the mandate. Last August, Merryday issued a classwide preliminary injunction.

In a separate case, Liberty Counsel presented oral arguments last month before the Eleventh Circuit Court of Appeals on behalf of a U.S. Marine lieutenant colonel and Navy commander of a warship.

“These military heroes have sacrificed everything to defend America,” Staver said. “Liberty Counsel continues to pursue a permanent injunction against the Department of Defense so that this abuse never again happens to our service members.”

On Jan. 10, the DOD officially rescinded its Aug. 24, 2021, and Nov. 30, 2021, memoranda mandating that all members of the U.S. military, including the National Guard and Ready Reserves, take the emergency use authorization COVID-19 shots or face discharge and other disciplinary measures. Congress required it to rescind the mandate when it passed the National Defense Authorization Act. The president signed the NDAA into law despite opposing ending the mandate, and after thousands of service members’ RARs were denied, were punished, demoted and discharged.

The DOD said it would comply with the law and “continue to promote and encourage COVID-19 vaccination for all Service members.” Those who didn’t get the shots due to religious, administrative or medical reasons wouldn’t face discharge, according to the DOD memo. And service members’ records would be updated to remove any adverse actions solely associated with denials of their exemption requests, including letters of reprimand.

The new policy doesn’t allow reinstatement for those who were discharged for refusing to comply. However, those who were discharged can contact their discharge review board to request a correction to their personnel records, “including records regarding the characterization of their discharge,” Liberty Counsel notes.

For those still in the military, each branch has been instructed to “further cease any ongoing reviews of current Service member religious administrative, or medical accommodation requests solely for exemption from the COVID-19 vaccine or appeals of denials of such requests.”

Liberty Counsel says it’s not confident that the DOD won’t end all retaliation against service members who filed RARs in light of actions taken against service members it’s described as “cruel and unusual punishment,” causing some to commit suicide.

It also raises concerns about a directive in the guidance, which states, “All commanders have the responsibility and authority to preserve the Department’s compelling interest in mission accomplishment. This responsibility and authority includes the ability to maintain military readiness, unit cohesion, good order and discipline, and the health and safety of a resilient Joint Force.”

This seems to imply that “getting the COVID-19 shots is the responsibility of the commander,” Staver said.

The DOD “has taken the position in litigation that refusing to take the shots after the RAR is denied undermines good order and discipline,” he added. “In other words, a commander who pledges to defend the Constitution and the laws of the land will be considered insubordinate for requesting that the laws of the land be enforced. This is ironically sad.”

This report was first published by The Center Square.

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