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The Vaccine Mutiny

The Supreme Court will likely soon hear the case of service members claiming religious exemptions to the military COVID vaccine mandate.
March 17, 2022
The Vaccine Mutiny
(Composite, Photos: GettyImages)

A mutiny is underway in the U.S. armed forces—but it’s not a matter of a few disgruntled sailors conspiring belowdecks. Instead, this mutiny is happening in broad daylight, and is led by, among others, the skipper of a Navy warship. In effect, it’s a reverse mutiny. And it is being aided and abetted by judges of the lower federal courts, several appointed by former President Donald J. Trump.

The commanding officer of a warship of the U.S. Navy, a number of Navy SEALs, and an Air Force officer have objected to the Department of Defense’s order mandating vaccination against COVID-19. They say their requests for religious exemption have been denied, while other kinds of exemption—administrative and medical—have been granted. They claim that the religious exemption option held out by the armed forces is a sham because no such exemptions are being granted. As authority for their claims, they point to the Free Exercise Clause of the First Amendment, as well as a 1993 law, the Religious Freedom Restoration Act. They also rely on a recent Supreme Court holding that, if a government agency offers exemption from an otherwise applicable law on any ground, it must do so for those asserting a religious claim.

The claims made by the plaintiffs are difficult to take seriously. One is that fetal tissue from abortions is used in the vaccine, and that this somehow makes the vaccine recipient a collaborator in abortion. But the moral connection between the specific acts of abortion in question and the research and development of the COVID vaccines is so tenuous that even the Vatican’s doctrinal office has judged the use of the vaccines “morally licit” and Pope Francis, a staunch opponent of abortion, has encouraged Roman Catholics to take the vaccine.

Other claims are even more farfetched. One plaintiff claimed to have received direct divine instruction not to receive the vaccine. Another claim was that the mRNA vaccines altered the divine creation of the body by unnaturally introducing the production of spike proteins.

How can these claims be accepted as a basis for exemption from a health-related requirement applicable to all uniformed personnel? The answer seems to be that it is sufficient that the claim be asserted, since the courts may play no role in determining whether the claim is sincere. But American law has long recognized conscientious objection as a basis for exemption from the draft (when we had one) and continues to do so for military personnel who become conscientious objectors after entering active duty. And in both contexts the individual’s sincerity is accepted as a legitimate subject for inquiry.

It may be a challenge to determine if a person is being sincere in stating their personal views on such matters, but it is a challenge our society has long overcome. Demeanor evidence obtained during a personal interview may be probative. An individual’s actual behavior may also cast doubt on the sincerity of claimed beliefs. For example, cell lines originally derived from fetal tissue have been used in the testing of, and in some cases in the development of, numerous over-the-counter and prescription medications, including Tylenol and Advil, Maalox and Pepto Bismol, Tums and Prilosec, Lipitor and Albuterol, and even Ivermectin, the drug beloved of vaccine skeptics. Have the vaccine mutineers ever used any of them?

Given the danger posed by COVID-19 transmission among service members, it never made sense for the Biden administration and the Pentagon to allow any exemptions—religious or otherwise. Commanders who are responsible for the health and well-being of their subordinates and have a duty to carry out all lawful orders, yet personally refuse to comply with the mandatory vaccination program, have no business being in command. Similarly, Navy SEALs and others who render themselves nondeployable are of no use to the taxpayers. When dealing with a highly contagious disease, the old adage “close enough for government work” has no place. Ninety-nine percent compliance is a failure.

Military personnel with a communicable disease are not fit for duty. If they are not interested in protecting their own health that’s one thing, but allowing them to threaten the health of shipmates and platoonmates is entirely different. The religious exemption should be rescinded. And if, in keeping with the Supreme Court’s recent ruling, the existence of other exemptions requires recognition of a religious exemption, then there should be no exemptions at all.

It will fall to the Supreme Court—perhaps acting as soon as this month—to confront the tension between its recent privileging of religion and its longstanding resistance to second-guessing military decision makers. Military personnel management on broad issues such as dealing with a pandemic is best left to those with direct responsibility for national defense.

One final note: In large measure we have President Trump to thank for the vaccine mutiny. His resistance to the advice of the country’s best medical minds not only likely led to countless deaths but, even after he was defeated for re-election, has emboldened military personnel and others to resist proven vaccines. The country cannot afford the luxury of sidelining a warship because its commanding officer has drunk this Kool-Aid. The same is true for the SEALs and other vaccine mutineers. Even if the world situation were less turbulent, this mutiny needs to end. The Supreme Court should stick to its guns, so to speak, on deference to national defense interests.

Eugene R. Fidell

Eugene R. Fidell is an adjunct professor of law at NYU Law School, a senior research scholar at Yale Law School, and a former president of the National Institute of Military Justice. A co-author of the textbook Military Justice: Cases and Materials (3d ed. 2020), he is of counsel at Feldesman Tucker Leifer Fidell LLP. Twitter: @globalmjreform.