Merryday’s injunction is “an extraordinary intrusion upon the inner workings of the military” and has essentially left the Navy short a warship, according to a Feb. 28 filing by the government.
“With respect to Navy Commander, the Navy has lost confidence in his ability to lead and will not deploy the warship with him in command,” the filing states.
The Navy has 68 Arleigh Burke-class destroyers in the surface fleet, 24 of which are based in Norfolk.
But while the government’s filing framed the judge’s order and the commander’s vaccine refusal as impacting the core of American military might, plaintiffs’ attorneys contend the case is ultimately about the rights afforded the plaintiffs under the Constitution and the Religious Freedom Restoration Act. That act bans the government from substantially burdening a person’s exercise of religion.
Merryday accused the defense of arguing as if the Religious Freedom Reform Act doesn’t apply to military members.
The commander’s contention that his rights under the act were denied “demands a closer examination, which is readily and reasonably promptly available.”
“Surely the free exercise rights restored by RFRA are not subject to evisceration or circumnavigation by a notion as subjective and illusory—and, according to the defendants, unreviewable by the judiciary — as a sudden ‘loss of confidence’ by a superior officer who sends a declaration to the court,” Merryday wrote.
What’s more, the government’s contention that vaccination against COVID maximizes the health and safety of servicemembers is not in dispute, he wrote.
“The defendants might prefer to argue that question, but the plaintiffs and the court address only the question presented in the RFRA claim,” Merryday’s order states.
Rather, the question is whether vaccinating the Navy commander and Marine Corps lieutenant colonel over their religious objections is “the least restrictive means of furthering that compelling government interest.”
“RFRA establishes that explicit test and places the burden of proof on the government,” Merryday wrote. “Proving the obvious, that vaccination is best for ‘the force’ and necessary for ‘the force,’ fails to satisfy the ‘to the person’ test require by RFRA. The military designs to avoid the ‘to the person’ test, but the statute is unflinching.”
In denying the government’s Feb. 28 motion, Merryday gave both sides until Tuesday to submit a witness and exhibit list as the case continues.
