Thirty-one military chaplains filed a class action lawsuit in May alleging the unconstitutional denial of religious accommodations relating to the vaccine mandate. The chaplains maintain they are protected by the First Amendment and the Religious Freedom Restoration Act (RFRA). Defendants in the case are the Department of Defense (DoD), several military branches, the Department of Health and Human Services, the FDA, and the CDC. The lawsuit provides a fulsome review of the blatant, concerning changes in definitions and procedural rules to achieve politically driven agendas and goals that seemingly ignore service members’ most basic constitutional rights.
Plaintiffs argue that the vaccine mandate and the military’s “no accommodation directive” are unconstitutional. Military chaplains who fail to comply with the vaccine mandate face “threat of disciplinary action” and “punitive discharge,” violating their “express statutory rights to follow their conscience as formed by their faith.”
Defendants in the case contend the “venue is not proper,” Plaintiffs’ claims “are not ripe or justiciable prior to exhaustion of military remedies” (some requests have not yet been adjudicated), and the vaccine is the best remedy for “the health and readiness” of the military forces.
The NDAA of 2013 Carves Out Protection for Military Chaplains
The 2013 National Defense Authorization Act (NDAA) lays out in Section 533—the right of chaplains to conduct themselves according to their conscience or religious faith. Section 533 allows a chaplain to reject performing any duty that violates their conscience without repercussion or penalty. As the footnote on page 5 of the lawsuit explains, the genesis of the 2013 NDAA amendment grew out of social policy changes in 2012 during the Obama administration concerning “the repeal of the military ban on homosexual behavior and the Supreme Court’s invalidation of the Defense of Marriage Act.” Chaplains at the time were concerned that they might have to perform wedding ceremonies that would violate their religious beliefs. Those protections were reinforced in both the 2016 and the 2018 NDAAs.
Retired Army veteran Arthur A. Schulcz’s testimony filed on July 18, 2022, speaks poignantly to the difficulties of defining and implementing religious freedom policies in the military in recent years. He fought to properly define the role of chaplains in the military in December 2012, working with Congress in anticipation of amendments to the 2013 NDAA to “defend chaplains’ rights to authentically represent their faith to the military, especially in their speech.” He describes the discrimination many in the military have experienced over the years if they dared speak against the prevailing political agenda. The Tweet below shows how Obama policy changes began to limit the First Amendment rights of Chaplains.
— OrgConservAmericans (@OCAmericans) November 10, 2013
Chaplains Have Unique Role in Military
The complaint states military chaplains are “unique military officers” because they are both commissioned officers and clergy. As such, they “raise unique statutory and constitutional religious liberty claims, in addition to the claims for systematic violations of service members’ RFRA and First Amendment rights that several courts have recently found Military Defendants likely committed.”
The lawsuit states congressional authority concerning honoring and protecting military chaplains’ conscience and faith has been violated by the mandate. Chaplains are unique in their roles as service members because they are afforded additional First Amendment protections as a result of their clerical roles. It has to do with the potential violations of the First Amendment’s Establishment Clause. The Establishment Clause prohibits the government from making any law “respecting an establishment of religion.”
The additional protections allow military clergy to make religion available to American soldiers in parts of the world that may not be able to practice in locations abroad without violating the Establishment Clause. Congress enacted amendments in Section 533 that allow military clergy to minister to soldiers around the world without conflicting with the U.S. government’s promise to operate neutrally with regard to religion.
The DoD Promised Respect for Sincerely Held Religious Beliefs
DoD Instruction 1300.17 in 2020 re-established the DoD’s requirement to “accommodate individual expressions of sincerely held beliefs (conscience, moral principles, or religious beliefs) which do not have an adverse impact on military readiness, unit cohesion, good order, and discipline or health and safety. A service member’s expression of such beliefs may not, in so far as practicable, be used as the basis of any adverse personnel action, discrimination, or denial of promotion, schooling, training, or assignment.” Moreover, the requests for religious accommodations must be granted at the lowest level to prevent undue delays or hardship. However, as the lawsuit points out, the mandate changed multiple religious accommodation procedures, including the requirement that accommodations be made at much higher levels of rank; “either the Surgeon General or a three-star General or Admiral.”
Definition of Vaccine Changes, Materially Impacting Service Members
Plaintiffs argue due process has been violated based on sudden and convenient changes in the definition of the vaccine in 2021, per the complaint. The fraudulent changes provide a “basis for punitive and retaliatory actions against service personnel,” according to the Plaintiffs. Additionally, the DOD insists that natural immunity due to prior infection is not a factor in the granting requests, thus materially limiting medical requests for so many.
“Prior to that change, the term “vaccine” meant a medical procedure that immunized the recipient and the public from the identified disease. Specifically, on September 1, 2021, the Centers for Disease Control and Prevention (“CDC”) redefined “vaccine” and “vaccination” to mean a medical procedure that merely stimulates the immune system to provide “protection.
The new, fraudulent definition of “vaccine” and “vaccination” allows the Military Defendants to claim the experimental COVID-19 treatments are “vaccines,” despite the fact that they do not provide immunity to the recipient, or prevent infection, re-infection or transmission. This fraudulent definition of a vaccine is the basis for the Secretary’s and the Services’ threats and actual punitive and retaliatory actions against Plaintiffs and other service personnel.”
Three Subclasses of Plaintiffs
There are three subclasses of Plaintiffs in the case:
- The first sub-class consists of Military Chaplain Class members who have sufficient time to retire if they chose to do so, do not wish to retire.
- A second class refers to the Sanctuary Sub-Class or those class members who have reached or almost reached 18 years of service, entitling them to “sanctuary” until they reach 20 years of service and are eligible for retirement.
- The third is comprised of those class members who have natural immunity from a documented previous COVID-19 infection—that provides equal or greater protection than vaccination for the current Omicronvariant—and should be eligible either for religious accommodation (i.e., as an alternative, less restrictive means) or a medical exemption under AR 40-562.
Expert Testimony on Vaccine and Natural Immunity
Former Professor of Medicine and current Professor of Health Policy at Stanford University School of Medicine, Dr. Jayanta Battacharya confirms with his testimony in a July 18 filing that the “COVID-19 infection poses less of a mortality risk than seasonal influenza.” He also confirms the long-held evidence of the durability of natural immunity. Battacharya states:
“Based on my analysis of the existing medical and scientific literature any policy regarding vaccination that does not recognize recovered immunity is irrational, arbitrary, and counterproductive to community health.”
Battacharya adds that generally, the COVID-19 “vaccines effectively protect against infection (and therefore disease spread) for only a short period of time.”
Chaplains Required to Justify Their Sincerely Held Beliefs
The one thing the Plaintiffs share is the experience of having had to justify their religious beliefs concerning the vaccine, a justification they should not be required to submit. Moreover, the plaintiffs allege that there has been a categorical DoD-wide rejection of religious accommodations regardless of how the plaintiffs explained their conscience on the matter.
The chaplains in the case present poignant testimony referring to their heartache over having to choose between their religious beliefs and their service in the military. Chaplains provide a critical role in servicemembers’ spiritual and mental health and the Biden administration seems to be Hellbent on forcing the removal of many chaplains in the armed forces.
One such Plaintiff, Robert J. Nelson describes his “dilemma of conscience.” (p.58)
“I cannot support vaccinations that goes (sic) against my beliefs. To do so, would create a dilemma of conscience and create moral injury which would make me ineffective in my role as a chaplain since I would be violating my principles by participating in a rite, ritual, or ceremony against my beliefs.”
He then remembers the day he was interviewed by the Chief of Chaplains, Steven Schaick, before he entered the Air Force. Schaick told the young prospective military chaplain:
“If the military is designed to win wars and break things, the chaplain’s purpose is to help airmen not lose themselves.”
Nelson then finishes his statement by saying he “never imagined that [he] would be in a personal war for my career with the military forcing me to choose between my faith in God and an immoral injection. This is a loss for airmen and our nation.”