The Navy can now reassign 36 members of the Special Warfare community who are unvaccinated against COVID-19, the Supreme Court ruled Friday.
The Supreme Court granted a partial stay of a preliminary injunction that prevented the Navy from dismissing or reassigning the SEALs and the other members of the Special Warfare community involved in the lawsuit. The Navy still cannot separate the SEALs, but it can assign them to non-deployable positions, which is what the sea service has done for other sailors who have exemptions for the vaccine.
Justice Brett Kavanaugh wrote the concurring opinion.
In his opinion, Kavanaugh wrote that his decision to grant the partial stay came down to the fact that the president of the United States is the commander of the armed forces, not judges.
“In this case, the District Court, while no doubt well-intentioned, in effect inserted itself into the Navy’s chain of command, overriding military commanders’ professional military judgments,” Kavanaugh wrote.
In the SEALs case, which was heard in the Fifth Circuit Court of Appeals, the plaintiffs argued that they were protected by the Religious Freedom Restoration Act, which says the government, in this case the Department of Defense, must show that there is a compelling interest for demanding something that might go against religious beliefs and that they are using the least restrictive means possible.
The plaintiffs argued that the DoD did not use the least restrictive means when mandating vaccination. The judges who initially heard the case and the appeal agreed that RFRA was violated.
However, Kavanaugh and the Supreme Court found that the Navy had a compelling interest and that vaccination was the least restrictive measure in order to prevent the spread of COVID-19.
The Supreme Court has traditionally deferred to the military when it comes to RFRA, USNI News previously reported.
Justices Neil Gorsuch and Samuel Alito wrote the dissenting opinion. Justice Clarence Thomas would have also denied the partial stay, although he did not join Gorsuch or Alito in their opinion.
The case will now return to the Fifth Circuit Court of Appeals, which will likely take up the issue of whether the Navy can separate the SEALs.
It is not clear how this case will affect the one of a Navy commanding officer, who along with plaintiffs from all branches of the military, is suing Secretary of Defense Lloyd Austin and other DoD officials to prevent separation.
Currently, the Navy is prevented from removing the unnamed commanding officer from his position as the commanding officer of an unnamed Navy destroyer over his refusal to get vaccinated due to a case currently being adjudicated in the Middle District of Florida.
Judge Steven Merryday ruled that the Navy did not meet the standards required by RFRA and granted a preliminary injunction that prevented the Navy from removing the commanding officer from his position or separating him from the service.
The Department of Defense officials have appealed the case to the Eleventh Circuit Court of Appeals.
The Navy has said it will not deploy the ship with the commanding officer in charge, as it violates the vaccination policy and leaders have lost confidence in the commanding officer’s ability to lead.
The Navy has separated 652 sailors for continued refusal to get vaccinated against COVID-19, USNI News reported. Of the 652, 620 are on active duty, although that does not include 22 who were in their first 180 days of service. They are all enlisted. No officers have been separated.
The Navy has the second-most separations out of the services, behind the Marine Corps, which has now separated 1,329 Marines, an increase of 155 over the past week, the service announced Thursday.
Behind the Navy is the Air Force with 222 separations and then the Army with 27.
The Marine Corps now has 97 percent of its active-duty force fully vaccinated, with another 1 percent partially vaccinated. Its reserve force is 90 percent fully vaccinated.
The Navy does not give out the percentage of vaccination, but 4,462 active-duty sailors are not fully vaccinated, which can include those who are partially vaccinated or exempted from vaccination.
The Marine Corps has approved six religious exemptions and 952 medical or administrative waivers.