A Case Law Review for U.S. Military on Religious Exemptions for Vaccine Mandates

By  Pam Long

U.S. military members have the right to pursue a religious exemption for a vaccine through a process that includes input from their commander, chaplain, medical provider and legal advisors — and in most cases, the law has upheld that right.

With an unprecedented number of service members in all branches seeking religious exemptions to the military’s mandate of a fast-tracked COVID vaccine using controversial mRNA technology and lacking long-term safety data, it is judicious for service members and their legal advisors, chaplains and commanders to understand legal precedent in religious accommodation decisions in the U.S. Armed Forces.

As previously reported in The Defender, military members have the right to pursue a religious accommodation for a vaccine through a process that includes input from their commander, chaplain, medical provider and legal advisors.

This article summarizes details of how religious exemptions are determined to be sincere and approved.

Unless otherwise hyperlinked, all of the quotations in this article are cited from “Over Your Dead Body: An Analysis on Requests for Religious Accommodations for Immunizations and Vaccinations in the United States Air Force” by Lt. Col. Christopher J. Baker, published in The Air Force Law Review, Vol. 81, 2020, pp. 1-74.

U.S. law protecting religious freedom

Service members do not surrender all First Amendment rights when joining the military, despite the doltish input of “barracks lawyers” or unsupportive friends who allege service members do not have rights and are government property.

The protections in the Religious Freedom Restoration Act (RFRA) of 1993 ensured that the services will allow religious accommodations which have no adverse impact on military readiness, lethality, unit cohesion, and good order and discipline, so that people of faith can choose to join the military.

Legal references regarding religious accommodation that precede 1993 may not be in accordance with full religious protections of the law. For example, a citation for Jacobson v. Massachusetts of 1905 as a precedent to fine people for vaccine refusal is no longer relevant because it does not include the religious protections of RFRA 1993, nor the right to refuse medical treatment in the Nuremberg Code of 1947 and the medical ethics in the Declaration of Helsinki in 1964.

Despite these universal medical rights, U.S. Congress and U.S. courts adhere to a tradition of judicial deference for military authorities to enact a more narrow definition of religious accommodation, connected to deity only, while civilians have broader protections which include personal beliefs, philosophical beliefs and creeds. This difference exists to support the strict order and discipline required in military missions.

The U.S. Department of Defense Instruction (DoDI) 1300.17, “Religious Liberty in the Military Services,” utilizes the RFRA framework for the legality of any health or hygiene mandate. Commanders must prove a compelling governmental interest, and apply it in the least restrictive way if it burdens a sincere exercise of religion (p. 8):

“The RFRA provides individuals better ability to practice their religion when the federal government’s neutral laws prevent them from doing so. Under RFRA, the individual challenging a statute has the burden of showing the government’s policy ‘implicates his religious exercise’ — i.e., that ‘the relevant exercise of religion is grounded in a sincerely held religious belief’ — and the government’s policy substantially burdens that exercise of religion. The burden then shifts to the government to show the policy ‘(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.’ RFRA provides both broad protection of the free exercise right and a broad right of action for judicial relief” (emphasis added).

In response to the current COVID vaccine coercion in the military, such as commanders withholding leave, denial of change-of-duty locations, disapprovals for schools required for promotion, removal from leadership positions and flags as non-deployable, DoDI is clear that those actions are illegal for service members who are applicants in the religious accommodation process:

“Significantly, in addition to utilizing the RFRA framework, the DoDI also states, ‘[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’ (p. 10).

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Via https://childrenshealthdefense.org/defender/military-religious-exemptions-vaccine-mandates/